SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) May 17,2000
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HomeSeekers.com, Incorporated
(Exact Name of Registrant as Specified in its Charter)
Nevada 0-23835 87-0397464
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
6490 s. McCarran Blvd., Suite D-28, Reno, Nevada 89509
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (775) 827-6886
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N/A
(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Acquisition or Disposition of Assets.
The board of directors of HomeSeekers.com, Incorporated (the "Company")
has amended and restated the bylaws of the Company, which amended and
restated bylaws are filed as an exhibit to this report on Form 8-K. The
company is also filing the subscription agreement and a press release
related to the previously announced contract to sell 579,170 shares of
the Company's common stock to AIG, LLC as exhibits to this report on
Form 8-K. Finally, the Company is filing the subscription agreement
related to a contract to sell 166,667 shares of the Company's common
stock to Pequot Scout Fund, L.P. as an exhibit to this report on Form
8-K.
Item 7. Exhibits.
(a) Exhibits.
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Exhibit No. Description
- ----------- -----------
1.1 Subscription Agreement, dated as of May 17, 2000, between
the Company and AIG, LLC.
1.2 Subscription Agreement, dated as of May 22, 2000, between
the Company and Pequot Scout Fund L.P.
3.1 Amended and Restated Bylaws of the Company.
99.1 Press Release issued May 22, 2000.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: May 23, 2000
HomeSeekers.com, Incorporated
By: /s/ Greg Costley
--------------------
Greg Costley, Chairman and Chief
Executive Officer
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
1.1 Subscription Agreement, dated as of May 17, 2000, between
the Company and AIG, LLC.
1.2 Subscription Agreement, dated as of May 22, 2000, between
the Company and Pequot Scout Fund L.P.
3.1 Amended and Restated Bylaws of the Company.
99.1 Press Release issued May 22, 2000.
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SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made and entered into
as of May 17, 2000, by and between HomeSeekers.com, Incorporated, a Nevada
corporation (the "Company"), and AIG, LLC (the "Purchaser").
1. Subscription. Subject to the terms and conditions contained herein,
the Purchaser hereby agrees to purchase from the Company, and the Company hereby
agrees to issue and sell to the Purchaser, 579,710 shares (the "Shares") of the
Company's Common Stock, par value $.001 per share ("Common Stock"), for an
aggregate purchase price of $2,000,000 (the "Purchase Price") on the date
hereof.
2. Closing. The closing (the "Closing") of the purchase and sale of the
Shares shall take place at the offices of the Company, 6490 South McCarran
Boulevard, Reno, Nevada 89511 on the date hereof. As soon as practicable after
the Closing, the Company will deliver to the Purchaser a certificate for the
Shares against payment to the Company of the Purchase Price by wire transfer of
immediately available funds to the bank account or accounts designated by the
Company.
3. Conditions to Obligations of the Purchaser. The Purchaser's
obligation to purchase the Shares at the Closing is subject to the fulfillment
(or waiver by the Purchaser), at or prior to the Closing, of each of the
following conditions:
3.1 Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects at the time of the Closing, except
as such representations and warranties are affected by the consummation of the
transactions contemplated by this Agreement.
3.2 Performance by the Company. The Company shall have duly performed
and complied in all material respects with all agreements and conditions
contained in this Agreement and required to be performed or complied with by the
Company at or prior to the Closing.
4. Nonfulfillment of Conditions. If any of the conditions specified in
Section 3 shall not have been fulfilled at or prior to the Closing, the
Purchaser shall be relieved of all further obligations under this Agreement,
without thereby waiving any other rights the Purchaser may have by reason of
such nonfulfillment.
5. Conditions to Obligations of the Company. The obligations of the
Company to issue and sell the Shares to the Purchaser at the Closing shall be
subject to the fulfillment (or waiver by the Company), at or prior to the
Closing, of each of the following conditions:
5.1 Accuracy of the Purchaser's Representations and Warranties. The
representations and warranties made by the Purchaser in this Agreement shall be
true and correct in all material respects when made and at the time of the
Closing.
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5.2 Performance by the Purchaser. The Purchaser shall have duly
performed and complied in all material respects with all agreements and
conditions contained in this Agreement and required to be performed or complied
with by the Purchaser at or prior to the Closing, including but not limited to
payment to the Company of the Purchase Price for the Shares in immediately
available funds.
6. Representations and Warranties of the Company. The Company
represents and warrants to the Purchaser as follows, except as set forth in the
Disclosure Schedule attached hereto and made a part hereof, the number of each
Schedule corresponding to the Section to which it refers.
6.1 Corporate Organization and Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada and has all requisite corporate power and authority to own or
lease its properties and to carry on its business as presently conducted.
6.2 Authorization. This Agreement and the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of the Company. This Agreement has been duly executed and delivered by the
Company, and are the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their terms.
6.3 No Conflict or Violation. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (a) violate, conflict with or result in a breach of or constitute a default
under any provision of the Certificate of Incorporation or Bylaws of the
Company, (b) violate, conflict with or result in a breach of or constitute a
default under any judgment, order, decree, rule or regulation of any court or
governmental agency to which the Company is subject or (c) violate, conflict
with or result in a breach of any applicable rule or regulation of any federal,
state, local or other governmental authority.
6.4 Stock. The Shares to be issued to the Purchaser pursuant to this
Agreement are duly authorized and, when issued and paid for in accordance with
the terms of this Agreement, will be validly issued, fully paid and
nonassessable.
7. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Company that:
7.1 Authorization. The Purchaser is an LLC duly organized, validly
existing and in good standing under the laws of the State of California and has
all requisite power and authority to execute and deliver this Agreement and to
subscribe for and purchase the Shares hereunder. This Agreement and the
transactions contemplated hereby and thereby have been duly authorized by all
necessary LLC action on the part of the Purchaser. This Agreement has been duly
executed and delivered by the Purchaser, and is the legal, valid and binding
obligations of the Purchaser, enforceable against it in accordance with their
terms.
7.2 No Conflict or Violation. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (a) violate, conflict with or result in a breach of or constitute a default
under any provision of the Certificate of Incorporation or Bylaws of the
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Purchaser, (b) violate, conflict with or result in a breach of or constitute a
default under any judgment, order, decree, rule or regulation of any court or
governmental agency to which the Purchaser is subject or (c) violate, conflict
with or result in a breach of any applicable rule or regulation of any federal,
state, local or other governmental authority.
7.3 Access to Information; Investigation. The Purchaser made, either
alone or together with its advisors (if any), such independent investigation of
the Company, its management and related matters as the Purchaser deemed to be,
or such advisors (if any) have advised to be, necessary or advisable in
connection with an investment in the Shares. The Purchaser and its advisors (if
any) have received all information and data that the Purchaser and such advisors
(if any) believe to be necessary in order to reach an informed decision as to
the advisability of an investment in the Shares.
8. Amendments and Waivers. This Agreement may be amended and the
observance of any provision hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of each party to be bound thereby. No provision of this
Agreement shall be deemed to have been waived, unless such waiver is contained
in a written notice given to the party claiming such waiver, and no such waiver
shall be deemed to be a waiver of any other or further obligation or liability
of the party or parties in whose favor the waiver was given.
9. Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by the Purchaser or by the
Company in connection with the transactions contemplated by this Agreement shall
survive the Closing Date and shall remain in full force and effect for three
years thereafter. All covenants and agreements contained in this Agreement shall
survive the Closing Date indefinitely until, by their respective terms, they are
no longer operative. No claims shall be made after the date on which the
applicable representation or warranty upon which such claim was based ceases to
survive pursuant to this Section 9; provided, however, that the expiration of
any representation or warranty under this Section 9 shall not affect any claim
made in good faith prior to the date of such expiration.
10. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto.
11. Notices. All notices, requests, demands and other communications
given hereunder (collectively, "Notices") shall be in writing and delivered
personally or by overnight courier to the parties at the following addresses or
sent by telecopier or telex, with confirmation received, to the telecopy
specified below:
If to the Company, at:
HomeSeekers.com, Incorporated
6490 South McCarran Boulevard
Reno, Nevada 89511
Attn.: Gregory L. Costley
Telecopy No.: (775) 827-8182
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If to the Purchaser, at:
AIG, LLC
One Montgomery Street
Suite 3300
San Francisco, CA 94104
All Notices shall be deemed delivered when actually received if
delivered personally or by overnight courier, sent by telecopier or telex
(promptly confirmed in writing), addressed as set forth above. Each of the
parties shall hereafter notify the other in accordance with this Section 11 of
any change of address or telecopy number to which notice is required to be
mailed.
12. Governing Law; Enforcement. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Nevada applicable to contracts made in that state, without giving effect to the
conflicts of laws principles thereof. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties are entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Nevada or in Nevada state court, this being in addition
to any other remedy to which they are entitled at law or in equity. In addition,
each of the parties hereto (a) consents to submit itself to the personal
jurisdiction of any federal court located in the State of Nevada or any Nevada
state court in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) agrees that it will not attempt
to deny such personal jurisdiction by motion or other request for leave from any
such court and (c) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any court
other than a federal or state court sitting in the State of Nevada.
13. Disputes. The parties agree to submit any dispute arising under
this Agreement to arbitration to be held in Reno, Nevada. Arbitration shall be
by a single arbitrator experienced in the matters at issue selected by the
parties in accordance with the commercial arbitration rules of the American
Arbitration Association. The decision of the arbitrator shall be final and
binding as to any matter submitted to him under this Agreement. All costs and
expenses incurred in connection with such arbitration proceeding shall be borne
by the party against whom the decision is rendered.
14. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall constitute one and the same instrument.
16. Entire Agreement. This Agreement and the Letter Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede all prior negotiations, agreements and
understandings, whether written or oral, of the parties.
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17. No Third-Party Rights. This Agreement is not intended, and shall
not be construed, to create any rights in any parties other than the Company and
the Purchaser and no person shall assert any rights as third-party beneficiary
hereunder.
18. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to affect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
HOMESEEKERS.COM INCORPORATED
By: /s/ Greg Costley
------------------------------
Its: CEO
-----------------------------
AIG, LLC
By: /s/ Jerry C. Apodaca
------------------------------
Its: Managing Partner
------------------------------
Address of Purchaser: One Montgomery Street, Suite 3300
San Francisco, CA 94104
Tax Identification No.: 94-3260504
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SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made and entered into
as of May 22, 2000, replacing and superceding the Subscription Agreement between
the parties dated May 18, 2000, by and between HomeSeekers.com, Incorporated, a
Nevada corporation (the "Company"), and Pequot Scout Fund, L.P. (the
"Purchaser").
1. Subscription. Subject to the terms and conditions contained herein,
the Purchaser hereby agrees to purchase from the Company, and the Company hereby
agrees to issue and sell to the Purchaser, 166,667 shares (the "Shares") of the
Company's Common Stock, par value $.001 per share ("Common Stock"), to be sold
under the Company's supplement to shelf registration prospectus dated March 30,
2000, for an aggregate purchase price of $500,001 (the "Purchase Price") on the
date hereof.
2. Closing. The closing (the "Closing") of the purchase and sale of the
Shares shall take place at the offices of the Company, 6490 South McCarran
Boulevard, Reno, Nevada 89511 on the date hereof. As soon as practicable after
the Closing, the Company will deliver to the Purchaser a certificate for the
Shares against payment to the Company of the Purchase Price by wire transfer of
immediately available funds to the bank account or accounts designated by the
Company.
3. Conditions to Obligations of the Purchaser. The Purchaser's
obligation to purchase the Shares at the Closing is subject to the fulfillment
(or waiver by the Purchaser), at or prior to the Closing, of each of the
following conditions:
3.1 Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects at the time of the Closing, except
as such representations and warranties are affected by the consummation of the
transactions contemplated by this Agreement.
3.2 Performance by the Company. The Company shall have duly performed
and complied in all material respects with all agreements and conditions
contained in this Agreement and required to be performed or complied with by the
Company at or prior to the Closing.
4. Nonfulfillment of Conditions. If any of the conditions specified in
Section 3 shall not have been fulfilled at or prior to the Closing, the
Purchaser shall be relieved of all further obligations under this Agreement,
without thereby waiving any other rights the Purchaser may have by reason of
such nonfulfillment.
5. Conditions to Obligations of the Company. The obligations of the
Company to issue and sell the Shares to the Purchaser at the Closing shall be
subject to the fulfillment (or waiver by the Company), at or prior to the
Closing, of each of the following conditions:
<PAGE>
5.1 Accuracy of the Purchaser's Representations and Warranties. The
representations and warranties made by the Purchaser in this Agreement shall be
true and correct in all material respects when made and at the time of the
Closing.
5.2 Performance by the Purchaser. The Purchaser shall have duly
performed and complied in all material respects with all agreements and
conditions contained in this Agreement and required to be performed or complied
with by the Purchaser at or prior to the Closing, including but not limited to
payment to the Company of the Purchase Price for the Shares in immediately
available funds.
6. Representations and Warranties of the Company. The Company
represents and warrants to the Purchaser as follows:
6.1 Corporate Organization and Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada and has all requisite corporate power and authority to own or
lease its properties and to carry on its business as presently conducted.
6.2 Authorization. This Agreement and the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of the Company. This Agreement has been duly executed and delivered by the
Company, and are the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their terms.
6.3 No Conflict or Violation. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (a) violate, conflict with or result in a breach of or constitute a default
under any provision of the Certificate of Incorporation or Bylaws of the
Company, (b) violate, conflict with or result in a breach of or constitute a
default under any judgment, order, decree, rule or regulation of any court or
governmental agency to which the Company is subject or (c) violate, conflict
with or result in a breach of any applicable rule or regulation of any federal,
state, local or other governmental authority.
6.4 Stock. The Shares to be issued to the Purchaser pursuant to this
Agreement are duly authorized and, when issued and paid for in accordance with
the terms of this Agreement, will be validly issued, fully paid and
nonassessable.
7. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Company that:
7.1 Authorization. The Purchaser is a Partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite power and authority to execute and deliver this Agreement
and to subscribe for and purchase the Shares hereunder. This Agreement and the
transactions contemplated hereby and thereby have been duly authorized by all
necessary partnership action on the part of the Purchaser. This Agreement has
been duly executed and delivered by the Purchaser, and is the legal, valid and
binding obligations of the Purchaser, enforceable against it in accordance with
their terms.
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7.2 No Conflict or Violation. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (a) violate, conflict with or result in a breach of or constitute a default
under any provision of the partnership agreement of the Purchaser, (b) violate,
conflict with or result in a breach of or constitute a default under any
judgment, order, decree, rule or regulation of any court or governmental agency
to which the Purchaser is subject or (c) violate, conflict with or result in a
breach of any applicable rule or regulation of any federal, state, local or
other governmental authority.
7.3 Access to Information; Investigation. The Purchaser made, either
alone or together with its advisors (if any), such independent investigation of
the Company, its management and related matters as the Purchaser deemed to be,
or such advisors (if any) have advised to be, necessary or advisable in
connection with an investment in the Shares. The Purchaser and its advisors (if
any) have received all information and data that the Purchaser and such advisors
(if any) believe to be necessary in order to reach an informed decision as to
the advisability of an investment in the Shares, including information with
respect to a potentially significant transaction involving the Company and a
third party previously disclosed to the Purchaser.
8. Amendments and Waivers. This Agreement may be amended and the
observance of any provision hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of each party to be bound thereby. No provision of this
Agreement shall be deemed to have been waived, unless such waiver is contained
in a written notice given to the party claiming such waiver, and no such waiver
shall be deemed to be a waiver of any other or further obligation or liability
of the party or parties in whose favor the waiver was given.
9. Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by the Purchaser or by the
Company in connection with the transactions contemplated by this Agreement shall
survive the Closing Date and shall remain in full force and effect for three
years thereafter. All covenants and agreements contained in this Agreement shall
survive the Closing Date indefinitely until, by their respective terms, they are
no longer operative. No claims shall be made after the date on which the
applicable representation or warranty upon which such claim was based ceases to
survive pursuant to this Section 9; provided, however, that the expiration of
any representation or warranty under this Section 9 shall not affect any claim
made in good faith prior to the date of such expiration.
10. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto.
11. Notices. All notices, requests, demands and other communications
given hereunder (collectively, "Notices") shall be in writing and delivered
personally or by overnight courier to the parties at the following addresses or
sent by telecopier or telex, with confirmation received, to the telecopy
specified below:
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If to the Company, at:
HomeSeekers.com, Incorporated
6490 South McCarran Boulevard
Reno, Nevada 89511
Attn.: Gregory L. Costley
Telecopy No.: (775) 827-8182
If to the Purchaser, at:
Pequot Scout Fund, L.P.
C/o Pequot Capital Management, Inc.
500 Nyala Farm Road
Westport, CT 06880
Attn: David J. Malat
All Notices shall be deemed delivered when actually received if
delivered personally or by overnight courier, sent by telecopier or telex
(promptly confirmed in writing), addressed as set forth above. Each of the
parties shall hereafter notify the other in accordance with this Section 11 of
any change of address or telecopy number to which notice is required to be
mailed.
12. Governing Law; Enforcement. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Nevada applicable to contracts made in that state, without giving effect to the
conflicts of laws principles thereof. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties are entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Nevada or in Nevada state court, this being in addition
to any other remedy to which they are entitled at law or in equity. In addition,
each of the parties hereto (a) consents to submit itself to the personal
jurisdiction of any federal court located in the State of Nevada or any Nevada
state court in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) agrees that it will not attempt
to deny such personal jurisdiction by motion or other request for leave from any
such court and (c) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any court
other than a federal or state court sitting in the State of Nevada.
13. Disputes. The parties agree to submit any dispute arising under
this Agreement to arbitration to be held in Reno, Nevada. Arbitration shall be
by a single arbitrator experienced in the matters at issue selected by the
parties in accordance with the commercial arbitration rules of the American
Arbitration Association. The decision of the arbitrator shall be final and
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binding as to any matter submitted to him under this Agreement. All costs and
expenses incurred in connection with such arbitration proceeding shall be borne
by the party against whom the decision is rendered.
14. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall constitute one and the same instrument.
16. Entire Agreement. This Agreement and the Letter Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede all prior negotiations, agreements and
understandings, whether written or oral, of the parties.
17. No Third-Party Rights. This Agreement is not intended, and shall
not be construed, to create any rights in any parties other than the Company and
the Purchaser and no person shall assert any rights as third-party beneficiary
hereunder.
18. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to affect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
(signature page follows)
5
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
HOMESEEKERS.COM INCORPORATED
By: /s/ Greg Costley
------------------------------
Its: CEO
-----------------------------
Pequot Scout Fund, L.P.
By: /s/ David J. Malat
----------------------------------
David J. Malat Pequot Capital Management, Inc.
Chief Accounting Officer Investment Advisor
Address of Purchaser:
C/o Pequot Capital Management, Inc.
Attention: David J. Malat, Chief Accounting Officer
500 Nyala Farm Road
Westport, CT 06880
Tax Identification No.: 13-3741801
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Adopted as of May 23, 2000
AMENDED AND RESTATED BYLAWS
OF
HOMESEEKERS.COM, INCORPORATED
ARTICLE I.
OFFICES
SECTION 1.1 Nevada Office. The office of HomeSeekers.com, Incorporated
(the "Corporation") within the State of Nevada shall be in the City of Reno,
County of Washoe.
SECTION 1.2 Other Offices. The Corporation may also have an office or
offices and keep the books and records of the Corporation, except as otherwise
may be required by law, in such other place or places, either within or without
the State of Nevada, as the Board of Directors of the Corporation (the "Board")
may from time to time determine or the business of the Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 2.1 Place of Meetings. All meetings of holders of shares of
capital stock of the Corporation will be held at the office of the Corporation
in the State of Nevada or at such other place, within or without the State of
Nevada, as may from time to time be fixed by the Board or specified or fixed in
the respective notices or waivers of notice thereof.
SECTION 2.2 Annual Meetings. An annual meeting of stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting (an "Annual Meeting") shall be
held at such place, on such date, and at such time as the Board shall each year
fix, which date shall be within 13 months of the last Annual Meeting.
SECTION 2.3 Special Meetings. Except as required by law and subject to
the rights of holders of any series of Preferred Stock (as defined below),
special meetings of stockholders may be called at any time only by a resolution
of the Board, the Chairman of the Board or a the Secretary or Assistant
Secretary upon the written request (stating the purpose or purposes of the
meeting) of a majority of the directors then in office. Any such call must
specify the matter or matters to be acted upon at the meeting and only such
matter or matters shall be acted upon thereat.
SECTION 2.4 Notice of Meetings. Except as otherwise may be required by
law, notice of each meeting of stockholders, whether an Annual Meeting or a
special meeting, shall be in writing, shall state the purpose or purposes of the
meeting, the place, date and hour of the meeting and, unless it is an Annual
Meeting, shall indicate that the notice is being issued by or at the direction
of the person or persons calling the meeting, and a copy thereof shall be
delivered or sent by mail, not less than ten or more than 60 calendar days
<PAGE>
before the date of said meeting, to each stockholder entitled to vote at such
meeting. If mailed, such notice shall be directed to such stockholder at such
stockholder's address as it appears on the stock records of the Corporation,
unless he or she shall have filed with the Secretary of the Corporation a
written request that notices to him or her be mailed to some other address in
which case it shall be directed to him or her at such other address. Notice of
an adjourned meeting need not be given if the time and place to which the
meeting is to be adjourned was announced at the meeting at which the adjournment
was taken, unless (i) the adjournment is for more than 30 calendar days, or (ii)
the Board shall fix a new record date for such adjourned meeting after the
adjournment. It shall not be necessary to give notice to any stockholder who
submits a signed waiver of notice before of after the meeting.
SECTION 2.5 Record Date. (a) In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders, or to receive payment of any dividend or other distribution or
allotment of any rights or to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board may fix a record date, which record date shall not precede the date on
which the resolution fixing the record date is adopted and which record date
shall not be more than 60 nor less than ten calendar days before the date of any
meeting of stockholders. If no record date is fixed by the Board, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 60 calendar days prior to
such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
SECTION 2.6 Quorum. At each meeting of stockholders of the Corporation,
the holders of shares having a majority of the voting power of the capital stock
of the Corporation issued and outstanding and entitled to vote thereat shall be
present or represented by proxy to constitute a quorum for the transaction of
business, except as otherwise provided by law. Where a separate vote by a class
or classes is required, a majority of the shares of such class or classes in
person or represented by proxy shall constitute a quorum entitled to take action
with respect to that vote on that matter.
SECTION 2.7 Adjournments. In the absence of a quorum at any meeting of
stockholders or any adjournment or adjournments thereof, the Chairman of the
Board or holders of shares having a majority of the voting power of the capital
stock present or represented by proxy at the meeting may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
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a quorum shall be present or represented by proxy. At any rescheduled adjourned
meeting at which a quorum shall be present or represented by proxy, any business
may be transacted that might have been transacted at the meeting as originally
called if a quorum had been present or represented by proxy thereat.
SECTION 2.8 Notice of Stockholder Proposals of Business. (a) No
business may be transacted at an Annual Meeting, other than business that is
either (i) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board (or any duly authorized committee thereof),
(ii) otherwise properly brought before the Annual Meeting by or at the direction
of the Board (or any duly authorized committee thereof), or (iii) otherwise
properly brought before the Annual Meeting by any stockholder of the Corporation
(A) who is a stockholder of record on the date of the giving of the notice
provided for in this Bylaw and on the record date for the determination of
stockholders entitled to vote at such Annual Meeting and (B) who complies with
the notice procedures set forth in this Bylaw. In addition to any other
applicable requirements, for business to be properly brought before an Annual
Meeting by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the Corporation. To be timely, a
stockholder's notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the Corporation not less than 60
nor more than 90 calendar days prior to the date on which the Corporation first
mailed its proxy materials for the prior year's Annual Meeting; provided,
however, that in the event that the Annual Meeting is called for a date that is
not within 30 calendar days before or after the anniversary of the prior year's
Annual Meeting or if no Annual Meeting was held during the prior year, notice by
the stockholder in order to be timely must be so received not later than the
close of business on the tenth calendar day following the day on which public
disclosure of the date of the Annual Meeting was made. In no event will the
public disclosure of an adjournment of an Annual Meeting commence a new time
period for the giving of a stockholder's notice as described above. For purposes
of the foregoing, the date on which the Corporation first mailed its proxy
materials to stockholders will be the date so described in such proxy materials.
(a) To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the Annual Meeting (i) a brief description of the business desired to be
brought before the Annual Meeting and the reasons for conducting such business
at the Annual Meeting, (ii) the name and record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation that are owned beneficially or of record by such stockholder, (iv) a
description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business, and (v) a representation that such stockholder
intends to appear in person or by proxy at the Annual Meeting to bring such
business before the meeting.
(b) If the chairman of an Annual Meeting determines that business was
not properly brought before the Annual Meeting in accordance with the foregoing
procedures, the chairman will declare to the meeting that the business was not
properly brought before the meeting and such business will not be transacted.
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SECTION 2.9 Proxies and Voting. Except as otherwise provided in a
resolution of the Board adopted pursuant to the Certificate of Incorporation of
the Corporation (the "Certificate of Incorporation") and these Bylaws
establishing a series of Preferred Stock of the Corporation ("Preferred Stock"),
at each meeting of stockholders, each holder of shares of the Corporation's
Common Stock, par value $.001 per share ("Common Stock"), shall be entitled to
one (1) vote for each such share, determined with reference to the number of
shares of Common Stock standing in such holder's name on the stock records of
the Corporation maintained in accordance with Section 7.2 hereof (i) at the time
fixed pursuant to Section 2.5 of these Bylaws as the record date for the
determination of stockholders entitled to vote at such meeting, or (ii) if no
such record date shall have been fixed, then at the close of business on the day
next preceding the day on which notice thereof shall be given. At each meeting
of stockholders, all matters (except as otherwise provided in Section 3.3 of
these Bylaws and except in cases where a larger vote is required by law or by
the Certificate of Incorporation or these Bylaws) shall be decided by a majority
of the votes cast at such meeting by the holders of shares of capital stock
present or represented by proxy and entitled to vote thereon, a quorum being
present. At any meeting of the stockholders, every stockholder entitled to vote
may vote in person or by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the procedure established
for the meeting. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this Section 2.9
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmission could be
used, provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
All voting, including on the election of directors but excepting where otherwise
required by law, may be by a voice vote; provided, however, that upon demand
therefore by a stockholder entitled to vote or by such stockholder's proxy, a
stock vote shall be taken. Every stock vote shall be taken by ballots, each of
which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
SECTION 2.10 Inspectors. For each election of directors by the
stockholders and in any other case in which it shall be advisable, in the
opinion of the Board, that the voting upon any matter shall be conducted by
inspectors of election, the Board shall appoint an inspector or inspectors of
election. If, for any such election of directors or the voting upon any such
other matter, any inspector appointed by the Board shall be unwilling or unable
to serve, or if the Board shall fail to appoint inspectors, the chairman of the
meeting shall appoint the necessary inspector or inspectors. The inspector(s) so
appointed, before entering upon the discharge of their duties, shall be sworn
faithfully to execute the duties of inspectors with strict impartiality, and
according to the best of their ability, and the oath so taken shall be
subscribed by them. Such inspectors shall determine the number of shares of
capital stock of the Corporation outstanding and the voting power of each of the
shares represented at the meeting, the existence of a quorum, and the validity
and effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the chairman of the meeting or any stockholder
entitled to vote thereat, the inspector(s) shall make a report in writing of any
challenge, question or matter determined by them and shall execute a certificate
of any fact found by them. No director or candidate for the office of director
shall act as an inspector of election of directors. Inspector(s) need not be
stockholders.
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SECTION 2.11 Consent of Stockholders in Lieu of Meeting. Except as
otherwise provided in the Corporation's Articles of Incorporation any action
required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called Annual Meeting or special meeting of stockholders of
the Corporation and may not be effected otherwise by any consent in writing of
such stockholders.
ARTICLE III.
DIRECTORS
SECTION 3.1 Powers. The powers of the Corporation shall be exercised,
its business and affairs conducted, and its property controlled by the Board,
except as otherwise provided by the law of the State of Nevada or in the
Articles of Incorporation and including, without limiting the generality of the
foregoing, the unqualified power:
(i) to declare dividends from time to time in accordance with
law;
(ii) to purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(iii) to authorize the creation, making and issuance, in such
form as it may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(iv) to remove any officer of the Corporation with or without
cause, and from time to time to devolve the powers and duties of any officer
upon any other person for the time being;
(v) to confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(vi) to adopt from time to time such stock, option, stock
purchase, bonus or other compensation plans for directors, officers, employees
and agents of the Corporation and its subsidiaries as it may determine;
(vii) to adopt from time to time such insurance, retirement,
and other benefit plans for directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine; and
(viii) to adopt from time to time regulations, not
inconsistent with these Bylaws, for the management of the Corporation's business
and affairs.
SECTION 3.2 Number of Directors and Terms. The number of directors that
shall constitute the whole Board (exclusive of directors to be elected by the
holders of any one or more series of Preferred Stock voting separately as a
class or classes) shall be six; provided, however, that the Board, by resolution
adopted by vote of a majority of the then authorized number of directors may
increase or decrease the number of directors, but no decrease may shorten the
term of any incumbent director. The Board (exclusive of directors to be elected
by the holders of any one or more series of Preferred Stock voting separately as
a class or classes) shall be classified, with respect to the terms for which
they severally hold office, into two classes, as nearly equal in number as
possible, one class (the "Class I Directors") to hold office initially for a
term expiring at the Annual Meeting following the fiscal year ended June 30,
1999 and the other class (the "Class II Directors") to hold
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office initially for a term expiring at the next succeeding Annual Meeting, with
the directors of each class to hold office until their successors are duly
elected and qualified. At each Annual Meeting, the successors to the class of
directors whose term expires at such meeting shall be elected to hold office for
a term expiring at the Annual Meeting held in the second year following the year
of their election.
The names and addresses of the Class I Directors who shall serve until
the Annual Meeting following the fiscal year ended June 30, 1999 and until their
successors are duly elected and qualified are:
<TABLE>
<CAPTION>
Name Address
- ---- -------
<S> <C>
Greg Johnson 6490 S. McCarran Boulevard, Suite D-28, Reno, NV 89509
John Giaimo 6490 S. McCarran Boulevard, Suite D-28, Reno, NV 89509
Douglas Swanson 6490 S. McCarran Boulevard, Suite D-28, Reno, NV 89509
</TABLE>
The names and addresses of the Class II Directors who shall serve until
the next succeeding Annual Meeting and until their successors are duly elected
and qualified are:
<TABLE>
<CAPTION>
Name Address
- ---- -------
<S> <C>
Gregory Costley 6490 S. McCarran Boulevard, Suite D-28, Reno, NV 89509
David Holmes 6490 S. McCarran Boulevard, Suite D-28, Reno, NV 89509
Bradley Rotter 6490 S. McCarran Boulevard, Suite D-28, Reno, NV 89509
</TABLE>
As indicated above, these directors may increase the number of
directors and fill any vacancy, whether resulting from an increase in the number
of directors or otherwise, on the Board in the manner provided herein. It shall
not be necessary to list in the Bylaws the names and addresses of any directors
hereinafter elected.
SECTION 3.3 Vacancies and Newly Created Directorships. Subject to the
rights, if any, of the holders of any series of Preferred Stock to elect
additional directors under circumstances specified in a preferred stock
designation, newly created directorships resulting from any increase in the
number of directors and any vacancies on the Board resulting from death,
resignation, disqualification, removal or other cause will be filled solely by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board, or by a sole remaining director.
Any director elected in accordance with the preceding sentence will hold office
for the remainder of the full term in which the new directorship was created or
the vacancy occurred and until the director's successor is elected and
qualified. No decrease in the number of directors constituting the Board will
shorten the term of an incumbent director.
SECTION 3.4 Nominations; Elections. (a) Only persons who are nominated
in accordance with the following procedures will be eligible for election as
Directors of the Corporation. Nominations of persons for election to the Board
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may be made at any Annual Meeting (i) by or at the direction of the Board (or
any duly authorized Committee thereof) or (ii) by any stockholder of the
Corporation (A) who is a stockholder of record on the date of the giving of the
notice provided for in this Bylaw and on the record date for the determination
of stockholders entitled to vote at such Annual Meeting and (B) who complies
with the notice procedures set forth in this Bylaw. Directors shall be at least
21 years of age. Directors need not be stockholders. At each meeting of
stockholders for the election of directors at which a quorum is present, the
persons receiving a plurality of the votes cast shall be elected directors. In
addition to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation. To be timely, a stockholder's
notice to the Secretary must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 60 nor more than 90
calendar days prior to the date on which the Corporation first mailed its proxy
materials for the prior year's Annual Meeting; provided, however, that in the
event that the Annual Meeting is called for a date that is not within 30
calendar days before or after the anniversary of the prior year's Annual Meeting
or if no Annual Meeting was held during the prior year, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth calendar day following the day on which public
disclosure of the date of the Annual Meeting was made; provided, further, in the
case of a Special Meeting of stockholders called for the purpose of electing
directors, notice by the stockholder in order to be timely must be received no
later than the close of business on the tenth calendar day following the date on
which notice of the date of the Special Meeting was mailed to stockholders or
public disclosure of the date of the Special Meeting was made, whichever occurs
first. In no event will the public disclosure of an adjournment of an Annual
Meeting or a Special Meeting commence a new time period for the giving of a
stockholder's notice as described above. For purposes of the foregoing, the date
on which the Corporation first mailed its proxy materials to stockholders will
the Date so described in such proxy materials.
(a) To be in proper written form, a stockholder's notice to the
Secretary must set forth (i) as to each person whom the stockholder proposes to
nominate for election as a director (A) the name, age, business address and
residence address of the person, (B) the principal occupation or employment of
the person, (C) the class or series and number of shares of capital stock of the
Corporation that are owned beneficially or of record by the person, and (D) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934 and the rules and regulations thereunder (the
"Exchange Act"), or any successor or replacement provision with respect thereto,
including, without limitation, such person's written consent to being a nominee
and to serve as a director if elected; and (ii) as to the stockholder giving the
notice (A) the name and record address of such stockholder, (B) the class or
series and number of shares of capital stock of the Corporation that are owned
beneficially or of record by such stockholder, (C) a description of all
arrangements or understandings between or among such stockholder and each
proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such stockholder, (D) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (E) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to the Exchange Act.
Such notice must be accompanied by a written consent of each proposed nominee to
being named as a nominee and to serve as a director if elected.
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(b) If the chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the chairman will declare to
the meeting that the nomination was defective and such defective nomination will
be disregarded.
SECTION 3.5 Place of Meetings. Meetings of the Board shall be held at
the Corporation's office in the State of Nevada or at such other places, within
or without such State, as the Board may from time to time determine or as shall
be specified or fixed in the notice or waiver of notice of any such meeting.
SECTION 3.6 Regular Meetings. Regular meetings of the Board shall be
held in accordance with a yearly meeting schedule as determined by the Board; or
such meetings may be held on such other days and at such other times as the
Board may from time to time determine. Regular meetings of the Board shall be
held not less frequently than quarterly.
SECTION 3.7 Special Meetings. Special meetings of the Board may be
called by a majority of the directors then in office (rounded up to the nearest
whole number) or by the Chairman of the Board and shall be held at such place,
on such date, and at such time as he or she shall fix.
SECTION 3.8 Notice of Meetings. Notice of each special meeting of the
Board stating the time, place and purposes thereof, shall be (i) mailed to each
director not less than five calendar days prior to the meeting, addressed to
such director at his or her residence or usual place of business, or (ii) shall
be sent to him or her by facsimile, telex, cable or telegram so addressed, or
shall be given personally or by telephone, on 24 hours' notice.
SECTION 3.9 Quorum and Manner of Acting. The presence of at least a
majority of the authorized number of directors shall be necessary and sufficient
to constitute a quorum for the transaction of business at any meeting of the
Board. If a quorum shall not be present at any meeting of the Board, a majority
of the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present. Except where a different vote is required or permitted by law, the
Certificate of Incorporation or these Bylaws or otherwise, the act of a majority
of the directors present at any meeting at which a quorum shall be present shall
be the act of the Board. Any action required or permitted to be taken by the
Board may be taken without a meeting if all the directors consent in writing to
the adoption of a resolution authorizing the action. The resolution and the
written consents thereto by the directors shall be filed with the minutes of the
proceedings of the Board. Any one or more directors may participate in any
meeting of the Board by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall be deemed to
constitute presence in person at a meeting of the Board.
SECTION 3.10 Resignation. Any director may resign at any time by giving
written notice to the Corporation; provided, however, that written notice to the
Board, the Chairman of the Board, the Chief Executive Officer of the Corporation
or the Secretary of the Corporation shall be deemed to constitute notice to the
Corporation. Such resignation shall take effect upon receipt of such notice or
at any later time specified therein and, unless otherwise specified therein,
acceptance of such resignation shall not be necessary to make it effective.
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SECTION 3.11 Removal of Directors. Subject to the rights of holders of
Preferred Stock to elect directors under circumstances specified in a resolution
of the Board, adopted pursuant to the provisions of the Certificate of
Incorporation or these Bylaws establishing such series, any director may be
removed at any time, either with or without cause, by the holders of a majority
of the shares entitled at the time to vote at an election of directors.
SECTION 3.12 Compensation of Directors. The Board may provide for the
payment to any of the directors, other than officers or employees of the
Corporation, of a specified amount for services as director or member of a
committee of the Board, or of a specified amount for attendance at each regular
or special Board meeting or committee meeting, or of both, and all directors
shall be reimbursed for expenses of attendance at any such meeting; provided,
however, that nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV.
COMMITTEES OF THE BOARD
SECTION 4.1 Powers. The Board may, by resolution adopted by a majority
of the entire Board, designate one or more committees, each committee to consist
of one or more directors of the Corporation; provided that persons who are not
directors of the Corporation may also be members of the committees to the extent
provided in the resolution of the Board. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not they
constitute a quorum, may unanimously appoint another member of the Board to act
at the meeting in place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board and permitted
by law, shall have and may exercise all of the powers and authority of the Board
in the management of the business, property and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers that may
require it. Each committee of the Board may fix its own rules and procedures.
Notice of meetings of committees, other than of regular meetings provided for by
the rules, shall be given to committee members. All action taken by committees
shall be recorded in minutes of the meetings.
SECTION 4.2 Appointment and Powers of Audit Committee. The Board may,
by resolution adopted by the affirmative vote of a majority of the authorized
number of directors, designate an Audit Committee of the Board, which shall
consist of such number of members as the Board shall determine. The Audit
Committee shall: (i) make recommendations to the Board as to the independent
accountants to be appointed by the Board; (ii) review with the independent
accountants the scope of their examinations; (iii) receive the reports of the
independent accountants and meet with representatives of such accountants for
the purpose of reviewing and considering questions relating to their examination
and such reports; (iv) review, either directly or through the independent
accountants, the internal accounting and auditing procedures of the Corporation;
(v) review related party transactions; and (vi) perform such other functions as
may be assigned to it from time to time by the Board. The Audit Committee may
determine its manner of acting and fix the time and place of its meetings,
unless the Board shall otherwise provide. A majority of the members of the Audit
Committee shall constitute a quorum for the transaction of business by the
committee and the act of a majority of the members of the committee present at a
meeting at which a quorum shall be present shall be the act of the committee.
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SECTION 4.3 Compensation Committee; Other Committees. The Board may, by
resolution adopted by the affirmative vote of a majority of the authorized
number of directors, designate members of the Board to constitute a Compensation
Committee and such other committees of the Board as the Board may determine.
Such committees shall in each case consist of such number of directors as the
Board may determine, and shall have and may exercise, to the extent permitted by
law, such powers as the Board may delegate to them in the respective resolutions
appointing them. Each such committee may determine its manner of acting and fix
the time and place of its meetings, unless the Board shall otherwise provide. A
majority of the members of any such committee shall constitute a quorum for the
transaction of business by the committee and the act of a majority of the
members of such committee present at a meeting at which a quorum shall be
present shall be the act of the committee.
SECTION 4.4 Action by Consent; Participation by Telephone or Similar
Equipment. Unless the Board shall otherwise provide, any action required or
permitted to be taken by any committee may be taken without a meeting if all
members of the committee consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents thereto by the
members of the committee shall be filed with the minutes of the proceedings of
the committee. Unless the Board shall otherwise provide, any one or more members
of any such committee may participate in any meeting of the committee by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Participation by
such means shall constitute presence in person at a meeting of the committee.
SECTION 4.5 Resignations; Removals. Any member of any committee may
resign at any time by giving notice to the Corporation; provided, however, that
notice to the Board, the Chairman of the Board, the Chief Executive Officer of
the Corporation, the chairman of such committee or the Secretary of the
Corporation shall be deemed to constitute notice to the Corporation. Such
resignation shall take effect upon receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make it effective. Any member of any such
committee may be removed at any time, either with or without cause, by the
affirmative vote of a majority of the authorized number of directors at any
meeting of the Board called for that purpose. Any vacancies on any committee of
the Board shall be filled in the manner set forth above in respect of the
appointment of such committee.
ARTICLE V.
OFFICERS
SECTION 5.1 Number and Qualification. The Corporation shall have such
officers as may be necessary or desirable for the business of the Corporation.
The officers of the Corporation shall consist of a Chairman of the Board, Vice
Chairman of the Board, President, Chief Executive Officer, Chief Financial
Officer, Chief Technology Officer, one or more Vice Presidents, Secretary,
Assistant Secretary and such other officers as may from time to time be
appointed by the Board. Officers shall be elected by the Board, which shall
consider that subject at its first meeting after every Annual Meeting . Each
officer shall hold
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office until his or her successor is elected and qualified or until his or her
earlier resignation or removal. Any number of offices may be held by the same
person. The failure to elect a Chairman of the Board, Vice Chairman of the
Board, President, Chief Executive Officer, Chief Financial Officer, Chief
Technology Officer, Vice President, Secretary or Assistant Secretary shall not
affect the existence of the Corporation.
SECTION 5.2 Chairman of the Board. The Chairman of the Board shall have
general and active responsibility for the management of the business of the
Corporation and shall be responsible for implementing all orders and resolutions
of the Board. The Chairman of the Board shall also be a director and shall
preside at all meetings of the stockholders and directors. The Vice Chairman of
the Board, President and Chief Executive Officer shall report to the Chairman of
the Board. The Chairman of the Board shall perform the duties and exercise the
powers of the Chief Executive Officer or the President in the event of the Chief
Executive Officer's or the President's absence or disability.
SECTION 5.3 Vice Chairman of the Board. The Vice Chairman of the Board
shall have such powers and duties as may be delegated to him or her by the
Chairman of the Board and shall report to the Chairman of the Board.
SECTION 5.4 Chief Executive Officer. The Chief Executive Officer shall
supervise the daily operations of the business of the Corporation, and shall
report to the Chairman of the Board. Subject to the provisions of these Bylaws
and to the direction of the Chairman of the Board or the Board, he or she shall
perform all duties and have all powers that are commonly incident to the office
of Chief Executive Officer or that are delegated to him or her by the Chairman
of the Board or the Board. He or she shall have power to sign all stock
certificates, contracts and other instruments of the Corporation that are
authorized and shall have general supervision and direction of all of the other
officers, employees and agents of the Corporation.
SECTION 5.5 President. The President shall have such powers and duties
as may be delegated to him or her by the Chief Executive Officer and shall
report to the Chief Executive Officer.
SECTION 5.6 Chief Financial Officer. The Chief Financial Officer shall
be the principal accounting and financial officer of the Corporation. The Chief
Financial Officer shall perform all the duties commonly incident to the office
of Chief Financial Officer and such other duties as from time to time may be
assigned to him or her by the Chief Executive Officer or the Board. He or she
shall have charge of and be responsible for the maintenance of adequate books of
account for the Corporation and shall have charge and custody of all funds and
securities of the Corporation and for the receipt and disbursement thereof.
SECTION 5.7 Chief Technology Officer. The Chief Technology Officer
shall be the principal technology officer of the Corporation. The Chief
Technology Officer shall perform all the duties commonly incident to the office
of Chief Technology Officer and such other duties as from time to time may be
assigned to him or her by the Chief Executive Officer or the Board.
SECTION 5.8 Vice President. Each Vice President shall have such powers
and duties as may be delegated to him or her by the Chief Executive Officer or
the Board.
SECTION 5.9 Secretary. The Secretary shall issue all authorized notices
for, and shall keep minutes of, all meetings of the stockholders and the Board.
He or she shall have charge of the corporate books and shall perform such other
duties as the Chairman of the Board or the Board may from time to time
prescribe.
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SECTION 5.10 Assistant Secretary. The Assistant Secretary shall perform
the duties assigned to him or her by the Secretary.
SECTION 5.11 Delegation of Authority. The Chairman of the Board or the
Board may from time to time delegate the powers or duties of any officer to any
other officers or agents, notwithstanding any provision hereof.
SECTION 5.12 Execution of Documents and Action with Respect to
Securities of Other Corporations. The Chief Executive Officer shall have and is
hereby given, full power and authority, except as otherwise required by law or
directed by the Board, (a) to execute, on behalf of the Corporation, all duly
authorized contracts, agreements, deeds, conveyances or other obligations of the
Corporation, applications, consents, proxies and other powers of attorney, and
other documents and instruments, and (b) to vote and otherwise act on behalf of
the Corporation, in person or by proxy, at any meeting of stockholders (or with
respect to any action of such stockholders) of any other corporation in which
the Corporation may hold securities and otherwise to exercise any and all rights
and powers that the Corporation may possess by reason of its ownership of
securities of such other corporation. In addition, the Chief Executive Officer
may delegate to other officers, employees and agents of the Corporation the
power and authority to take any action that the Chief Executive Officer is
authorized to take under this Section 5.12, with such limitations as the Chief
Executive Officer may specify; such authority so delegated by the Chief
Executive Officer shall not be re-delegated by the person to whom such execution
authority has been delegated.
SECTION 5.13 Removal. Any officer of the Corporation may be removed at
any time, with or without cause, by the Chairman of the Board or the Board.
SECTION 5.14 Resignations. Any officer may resign at any time by giving
written notice to the Corporation; provided, however, that notice to the Board,
Chairman of the Board, the Chief Executive Officer, the Secretary or the
Assistant Secretary shall be deemed to constitute notice to the Corporation.
Such resignation shall take effect upon receipt of such notice or at any later
time specified therein; and, unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
SECTION 5.15 Vacancies. Any vacancy among the officers, whether caused
by death, resignation, removal or any other cause, shall be filled in the manner
prescribed for election or appointment to such office.
SECTION 5.16 Action with Respect to Securities of Other Corporations.
Unless otherwise directed by the Board, the Chairman of the Board or any officer
of the Corporation authorized by the Chairman of the Board shall have power to
vote and otherwise act on behalf of the Corporation, in person or by proxy, at
any meeting of stockholders of or with respect to any action of stockholders of
any other corporation in which this Corporation may hold securities and
otherwise to exercise any and all rights and powers that this Corporation may
possess by reason of its ownership of securities in such other corporation.
SECTION 5.17 Compensation. The salaries of the officers shall be fixed
from time to time by the Board, unless and until the Board appoints a
Compensation Committee.
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SECTION 5.18 Officers of Divisions. The Chairman of the Board shall
have the power to appoint, remove and prescribe the terms of office,
responsibilities, duties and salaries of, the officers of divisions of the
Corporation, other than those who are officers of the Corporation.
ARTICLE VI.
CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
SECTION 6.1 Contracts. The Board may authorize any officer or officers,
agent or agents, in the name and on behalf of the Corporation, to enter into any
contract or to execute and deliver any instrument, which authorization may be
general or confined to specific instances; and, unless so authorized by the
Board, no officer, agent or employee shall have any power or authority to bind
the Corporation by any contract or engagement or to pledge its credit or to
render it liable pecuniarily for any purpose or for any amount.
SECTION 6.2 Checks, etc. All checks, drafts, bills of exchange or other
orders for the payment of money out of the funds of the Corporation, and all
notes or other evidences of indebtedness of the Corporation, shall be signed in
the name and on behalf of the Corporation in such manner as shall from time to
time be authorized by the Board, which authorization may be general or confined
to specific instances.
SECTION 6.3 Loans. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board, which authorization may be general or confined to
specific instances, and bonds, debentures, notes and other obligations or
evidences of indebtedness of the Corporation issued for such loans shall be
made, executed and delivered as the Board shall authorize.
SECTION 6.4 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositors as may be selected by or in
the manner designated by the Board. The Board or its designees may make such
special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of the Certificate of Incorporation or these
Bylaws, as they may deem advisable.
ARTICLE VII.
CAPITAL STOCK
SECTION 7.1 Certificates of Stock. Each stockholder shall be entitled
to a certificate signed by, or in the name of the Corporation by, the Chairman
of the Board, Vice Chairman of the Board, Chief Executive Officer, President or
a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer, certifying the number of shares owned by
him or her. Any or all of the signatures on the certificate may be by facsimile.
SECTION 7.2 Stock List. A complete list of stockholders entitled to
vote at any meeting of stockholders, which shows the address of each such
stockholder and the number of shares of the Corporation that are registered in
such stockholder's name, shall be maintained by the Corporation and open to the
examination of any such stockholder, for any purpose germane to the meeting,
during ordinary business hours for a period of at least ten calendar days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held.
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The stock list shall also be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of any such
stockholder who is present. This list shall presumptively determine the identity
of the stockholders entitled to vote at the meeting and the number of shares
held by each of them.
SECTION 7.3 Transfers of Stock. Transfers of stock shall be made only
upon the transfer books of the Corporation kept at an office of the Corporation
or by transfer agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance with Section 7.5
of these Bylaws, an outstanding certificate for the number of shares involved
shall be surrendered for cancellation before a new certificate is issued
therefor.
SECTION 7.4 Lost, Stolen or Destroyed Certificates. In the event of the
loss, theft or destruction of any certificate of stock, another may be issued in
its place pursuant to such regulations as the Board may establish concerning
proof of such loss, theft or destruction and concerning the giving of
satisfactory bond or bonds of indemnity.
SECTION 7.5 Regulations. The issue, transfer, conversion and
registration of certificates of stock shall be governed by such other
regulations as the Board may establish.
ARTICLE VIII.
NOTICES
SECTION 8.1 Notices. Except as otherwise specifically provided herein
or required by law, all notices required to be given to any stockholder,
director, officer, employee or agent shall be in writing and may in every
instance be effectively given by hand delivery to the recipient thereof, by
depositing such notice in the mails, postage paid, or with a recognized
overnight delivery service or by sending such notice by prepaid telegram,
mailgram or by facsimile transmission. Any such notice shall be addressed to
such stockholder, director, officer, employee or agent at such person's last
known address as the same appears on the books of the Corporation. The time when
such notice is received, if hand delivered, or dispatched, if delivered through
the mails or by overnight delivery service, or by telegram, mailgram or
facsimile, shall be the time of the giving of the notice.
SECTION 8.2 Waivers. A written waiver of any notice, signed by a
stockholder, director, officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent to
the notice required to be given to such stockholder, director, officer, employee
or agent. Neither the business nor the purpose of any meeting need be specified
in such a waiver.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1 Facsimile Signatures. In addition to the provisions for use
of facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers or director or directors of the
Corporation may be used whenever and as authorized by the Board or a committee
thereof.
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SECTION 9.2 Corporate Seal. The Board may provide a suitable seal,
containing the name of the Corporation, which seal shall be in the charge of the
Secretary of the Corporation. If and when so directed by the Board or a
committee thereof, duplicates of the seal may be kept and used by the
Corporation's Secretary or Assistant Secretary.
SECTION 9.3 Reliance Upon Books, Reports and Records. Each director,
each member of any committee designated by the Board, and each officer of the
Corporation shall, in the performance of his or her duties, be fully protected
in relying in good faith upon the books of account or other records of the
Corporation and upon such information, opinions, reports or statements presented
to the Corporation by any of its officers or employees, or committees of the
Board so designated, or by any other person as to matters that such director or
committee member reasonably believes are within such other person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Corporation.
SECTION 9.4 Fiscal Year. The fiscal year of the Corporation shall be as
fixed by the Board. Until changed by the Board, the last day of the
Corporation's fiscal year shall be June 30.
SECTION 9.5 Time Periods. In applying any provision of these Bylaws
that requires that an act be done or not be done a specified number of days
prior to an event or that an act be done during a period of a specified number
of days prior to an event, calendar days shall be used, the day of the doing of
the act shall be excluded, and the day of the event shall be included.
ARTICLE X.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 10.1 Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter, a "proceeding"), by reason of the fact that he or
she is or was a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
entity, whether for profit or not for profit (including the heirs, executors,
administrators or estate of such person) and including service with respect to
an employee benefit plan (hereinafter, an "indemnitee"), whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Nevada Revised Statutes, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than such law permitted the Corporation
to provide prior to such amendment), or any other applicable law as currently or
hereafter in effect against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith; provided, however, that, except as provided in Section
10.3 hereof with respect to proceedings to enforce rights to indemnification,
the Corporation shall indemnify any such indemnitee in connection with a
proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board.
SECTION 10.2 Right to Advancement of Expenses. The right to
indemnification conferred in Section 10.1 hereof shall include the right to be
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paid by the Corporation the expenses (including attorneys' fees) incurred in
defending any such proceeding in advance of its final disposition (hereinafter,
an "advancement of expenses"); provided, however, that, if the Nevada Revised
Statutes law require, an advancement of expenses incurred by an indemnitee in
his or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter, an "undertaking"),
by or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter, a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 10.2 or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections 10.1 and 10.2 hereof shall be contract rights
and such rights shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
SECTION 10.3 Right of Indemnitee to Bring Suit. If a claim under
Section 10.1 or 10.2 hereof is not paid in full by the Corporation within 60
calendar days after a written claim has been received by the Corporation, except
in the case of a claim for an advancement of expenses, in which case the
applicable period shall be 20 calendar days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) any suit brought by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met any applicable standard for indemnification set
forth in the Nevada Revised Statutes. Neither the failure of the Corporation
(including its Board, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that indemnification
of the indemnitee is proper in the circumstances because the indemnitee has met
the applicable standard of conduct set forth in the Nevada Revised Statutes, nor
an actual determination by the Corporation (including its Board, independent
legal counsel, or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article X or otherwise shall be on the Corporation.
SECTION 10.4 Non-Exclusivity of Rights. The rights to indemnification
and to the advancement of expenses conferred in this Article X shall not be
exclusive of any other right that any person may have or hereafter acquire by
any statute, the Corporation's Certificate of Incorporation or Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 10.5 Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
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Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Nevada Revised Statutes.
SECTION 10.6 Indemnification of Employees and Agents of the
Corporation. The Corporation may, to the extent authorized from time to time by
the Board, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Article X with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation.
ARTICLE XI.
AMENDMENTS
The Board may from time to time make, amend, supplement or repeal these
Bylaws by vote of a majority of the Board; provided, however, that the
stockholders may change or amend or repeal any provision of these Bylaws by the
affirmative vote of the holders of a majority of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting as
one class. In addition to and not in limitation of the foregoing, these Bylaws
or any of them may be amended or supplemented in any respect at any time,
either: (i) at any meeting of stockholders, provided that any amendment or
supplement proposed to be acted upon at any such meeting shall have been
described or referred to in the notice of such meeting; or (ii) at any meeting
of the Board, provided that any amendment or supplement proposed to be acted
upon at any such meeting shall have been described or referred to in the notice
of such meeting or an announcement with respect thereto shall have been made at
the last previous Board meeting, and provided further that no amendment or
supplement adopted by the Board shall vary or conflict with any amendment or
supplement adopted by the stockholders.
17
AIG, LLC IN DEFAULT ON CONTRACT TO PURCHASE HOMESEEKERS.COM COMMON STOCK
RENO, Nevada - May 22, 2000... HomeSeekers.com (NASDAQ: HMSK) today announced
that it has notified AIG, LLC that AIG, LLC is in default under its contractual
obligation to purchase 579,710 shares of HomeSeekers.com common stock for an
aggregate purchase price of $2.0 million. AIG, LLC is not an affiliate of
American International Group, Inc. Pursuant to the terms of the subscription
agreement between AIG, LLC and the Company, AIG, LLC was obligated to purchase
the shares. There can be no assurance that HomeSeekers.com will receive any of
the $2.0 million contract price from this agreement.
HomeSeekers.com continues to actively pursue a number of potential financing
alternatives.
About HomeSeekers.com, Incorporated
HomeSeekers.com, Incorporated is a leading provider of technology to the North
American and International real estate industries. The company provides
technology solutions and services targeted to brokers, agents, Multiple Listing
Services (MLS), builders, consumers and others involved in the real estate
industry. Product and services offerings can be viewed at the company's primary
website, http://www.homeseekers.com.
This press release contains various forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995 regarding future
results of operations and market opportunities that are based on
HomeSeekers.com's current expectations, assumptions, estimates and projections
about the company and its industry. Investors are cautioned that actual results
could differ materially from those anticipated by the forward-looking statements
as a result of the success of HomeSeekers.com's branding and consumer awareness
campaign and other marketing efforts; competition from existing and potential
competitors; and HomeSeekers.com's ability to continue to develop and integrate
new products, services and technologies. These factors, along with other
potential risks and uncertainties are discussed in HomeSeekers.com's reports and
other documents filed with the Securities and Exchange Commission.
