-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, I6P+H58LQ/4al754wiol2A9O7P7W5G2Ser+9PxKg/FG3C8vOYyPBBPiIV/KbUbi8 kmVCafmenLjg1hKptpl6EA== 0000892569-98-000424.txt : 19980218 0000892569-98-000424.hdr.sgml : 19980218 ACCESSION NUMBER: 0000892569-98-000424 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19980112 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980217 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SHOPPING COM CENTRAL INDEX KEY: 0001045360 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] IRS NUMBER: 330733679 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-29518 FILM NUMBER: 98543137 BUSINESS ADDRESS: STREET 1: 2101 E COAST HIGHWAY GARDEN LEVEL CITY: CORONA DEL MAR STATE: CA ZIP: 92625 BUSINESS PHONE: 7146404393 8-K 1 CURRENT REPORT 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K Current Report Pursuant to Section 13 or 15(d) of The Securities Act of 1934 Date of Report (Date of earliest event reported): February 10, 1998 SHOPPING.COM (Exact name of registrant as specified in its charter) CALIFORNIA 333-36215 33-0733679 (State or other (Commission (I.R.S. Employer jurisdiction File Number) Identification No.) of incorporation) 2101 E. COAST HIGHWAY, GARDEN LEVEL CORONA DEL MAR, CALIFORNIA 92625 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (714) 640-4393 ------------------------------------------------------------ (Former name or former address, if changed since last report.) ================================================================================ 2 ITEM 5 OTHER EVENTS. On February 10, 1998, the Company entered into a two year agreement with En Pointe Technologies, Inc. ("En Pointe"), a national provider of information technology and services. The agreement consists of using En Pointe's extensive sales network, in excess of 200, to sell the Company's 15,000 business and office products directly to Fortune 500 companies. On February 9, 1998, the Company entered into a three year agreement with Profit Pro, Inc., a provider of cataloging software. The agreement consists of using Profit Pro, Inc.'s cataloging software which will look up auto parts on the Company's website, opening up the Company's market to the over $120 billion automotive market. ITEM 7 EXHIBITS. The following exhibits are filed as part of this report in accordance with the provisions of Item 601 of Regulation S-K: Exhibit Name of Exhibit - ------- --------------- 10.14 Agreement with En Pointe Technologies, Inc. dated February 10, 1998 10.15 Agreement with Profit Pro, Inc. dated February 9, 1998 99.1 Press Release dated February 10, 1998 99.2 Press Release dated February 11, 1998 3 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. SHOPPING.COM Date: January 13, 1998 By: /s/ Kristine E. Webster -------------------------------------- Kristine E. Webster Chief Financial Officer and Treasurer (Principal Accounting Officer) 4 EXHIBIT INDEX EXHIBIT NAME OF NUMBER EXHIBIT 10.14 Agreement with En Pointe Technologies, Inc. dated February 10, 1998 10.15 Agreement with Profit Pro, Inc. dated February 9, 1998 99.1 Press Release dated February 10, 1998 99.2 Press Release dated February 11, 1998 EX-10.14 2 AGREEMENT WITH EN POINTE TECHNOLOGIES, INC. 1 EXHIBIT 10.14 AGREEMENT WITH EN POINTE TECHNOLOGIES, INC. DATED FEBRUARY 10, 1998 2 Marketing Agreement THIS MARKETING AGREEMENT (this "Agreement") is made as of this 10th day of February, 1998 by and between En Pointe Technologies Sales, Inc., a Delaware corporation ("En Pointe"), with its principal offices at 100 N. Sepulveda Blvd., 19th floor, El Segundo, CA 90245, and Shopping.com, a California corporation ("Shopping"), with its principal offices at 2101 East Coast Hwy., Garden Level, Corona del Mar, CA 92625 BACKGROUND Shopping desires En Pointe assist in marketing the full range of Shopping's products on Shopping's behalf throughout the United States and En Pointe agrees to assist in said marketing. IN CONSIDERATION OF THE FOREGOING and of the mutual covenants, conditions, and agreements hereinafter set forth, the parties intending to be legally bound do hereby agree as follows: 1.DEFINITIONS. The following words shall have the following meanings when used in the Agreement: 1.1 "Products" shall mean any products or services offered for sale by Shopping to the public through Shopping's website, or otherwise. 1.2 "Territory" shall mean the United States and its territories and possessions. 2.APPOINTMENT AND ACCEPTANCE OF EXCLUSIVITY. Subject to the terms herein, Shopping hereby grants En Pointe a non-exclusive right and license to market and license the Products. En Pointe hereby accepts its non-exclusive appointment to market and license the Products in the Territory. 3.GRANT OF LICENSE TO En Pointe. Subject to the terms herein, Shopping hereby grants En Pointe the non-exclusive license to utilize Shopping's trademarks and services marks associated with the Products as reasonable necessary in connection with any sales of as reasonable necessary to satisfy its obligations hereunder. En Pointe may use Shopping's trademarks and service marks in the presentations and sales of the Products. 4.TERM. This Agreement shall become effective on February 10, 1998 and continue for two (2) years therefrom. This Agreement shall automatically renew for continuous one (1) year periods unless one party gives the other party three (3) months' prior written notice of its intent to terminate this Agreement. 5.FURTHER ASSISTANCE. Subject to the terms herein, Shopping agrees to furnish En Pointe all such information, assistance, and cooperation as may be reasonably required in negotiating agreements with customers. 6.MARKETING. En Pointe shall use good-faith efforts to market those of the Products appropriate to it. In the event Shopping desires to distribute or otherwise utilize any marketing programs or materials, including any reference to En Pointe after the termination of this Agreement. Shopping must remove any such reference prior to such utilization. 7.COSTS AND OBLIGATIONS OF THE PARTIES. En Pointe and Shopping will each bear their own 3 costs incurred in advertising and marketing the Products. Notwithstanding the previous sentence, Shopping will provide approximately two (2) to three (3) days of product training at all En Pointe locations to support the launch of a sales and marketing campaign and approximately two (2) to three (3) days at Shopping's office for a marketing-oriented technical system walk-through without cost to En Pointe. 9.INTELLECTUAL PROPERTY AND PATENT INDEMNIFICATION. The following terms apply to any infringement or claim of infringement of any patent, trademark, copyright, trade secret, or other proprietary interest based on the licensing, use, or sale of any Products furnished to customers under this Agreement. Shopping shall indemnify En Pointe for any loss, damage, expense, or liability, including costs and reasonable attorney's fees, that may result by reason of any such infringement or claim of infringement. 10.INDEMNITY. Shopping agrees to indemnify and save harmless En Pointe, its parent subsidiaries and affiliates, and its and their directors, officers and employees, from any liabilities, lawsuits, penalties, claims, or demands (including the costs, expenses, and reasonable attorney's fees on account thereof) that may be made (1) by any third party for injuries, including death, to persons or damage to property, including theft, resulting from the indemnifying party's negligent or willful acts omissions; or (2) by any employee or former employee of the indemnifying party or any of its subcontractors for which the indemnifying party or subcontractors' liability to such employee or former employee would otherwise be subject to payments under state worker's compensation or similar laws. Shopping agrees to defend En Pointe, at En Pointe's request, against any such liability, claim, or demand. The foregoing indemnity shall be in addition to any other indemnity obligations of Shopping set forth in this Agreement. REPRESENTATIONS AND WARRANTIES OF SHOPPING. 10.1 In order to induce En Pointe to enter into this Agreement, Shopping represents and warrants to En Pointe (I) that it owns all rights, title, and interest in and to the Products; (ii) that the Products are free from defects in workmanship and materials; (iii) Shopping further warrants that any services provided by Shopping under this Agreement shall be performed in a fully workmanlike manner to Customer's satisfaction and in accordance with the prevailing professional standards of the applicable industry; (iv) En Pointe's use or sale of the Products will not violate the intellectual property rights of any third party. 11.LIMITATION OF LIABILITY. Except as expressly provided in this Agreement, En Pointe, its parent, subsidiaries and affiliates, and its and their directors, officers and employees, shall not be liable for any indirect, special, incidental or consequential damages (including, but not limited to, loss or profits), whether based or tort, warranty, contracts, or otherwise, arising out of or in any way related to this Agreement or the providing of the Products, even if such party has been advised of the possibility of such damages. Notwithstanding any provision contained in this Agreement, Shopping agrees that En Pointe's liability hereunder for damages shall be Shopping's exclusive remedy and that such liability, regardless of the form of action, shall not exceed $10,000,000. No action, regardless of form, arising under this Agreement, may be brought by either party more than two (2) years after the cause of action has arisen, except that an action for nonpayment may be brought within one (1) year after the date of the most recent payment. EN POINTE DOES NOT MAKE ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 4 12.NO FURTHER RELATIONSHIPS. This Agreement shall not constitute, give effect to, or otherwise imply a joint venture, pooling arrangement, partnership, or formal or informal business organization of any kind. 13.TERMINATION. In the event of the termination of this Agreement, En Pointe shall be entitled to complete all sales already under contract and receive all revenue generated from such sales less the purchase price to ve paid for such to Shopping, within two (2) years of the termination of this Agreement. In addition, En Pointe shall be entitled to receive compensation as provided in this Agreement for all sales completed within six (6) months of the termination of this Agreement for all customers with which En Pointe had a letter of intent, responded to a Request for Proposal (RFP), or made a presentation to representatives of the eventual Pointe. 14.TRANSFER OF OBLIGATIONS. Shopping hereby approves the transfer and pass-through of its obligations under Sections 8,9, and 10 to En Pointe's customers and agrees to provide such indemnifications and warranty to En Pointe's customers without charge to En Pointe. 15.SALES ACTIVITY REPORTING. Shopping shall provide to En Pointe, no later than the twentieth (20th) day following the end of each calendar month, a report of En Pointe's activity during the prior calendar month. Such report shall include information on receipts, billings, bookings, and sales contracts. En Pointe shall have the right to audit all Shopping records pertaining to the Products during normal business hours provided three (3) days' prior written notice is provided to Shopping. Shopping shall bear the expense of such audit unless the results of such reveal an error of less than 5 percent of the revenues to be received by En Pointe, in which event En Pointe shall bear the expense of such audit. 16.PAYMENT During the term, En Pointe, will be entitled to payment or retention of I) the first two percent (2%) of sales price to customer, exclusive of tax; plus, ii) thirty percent (30%) of the Gross Profit Margin on all Products. Gross Profit Margin means sales price to customer, exclusive of tax, minus invoice cost, exclusive of tax. Shopping and En Pointe will split the remaining Gross Profit Margin on all Products, fifty/fifty (50/50). En Pointe will remit any payments due Shopping, once per month, based on En Pointe's actual receipt of good payment funds form customers within the prior month. 17.CUSTOMER CONTRACT, SHIPPING AND PACKING LABELS. En Pointe shall contract directly with customers for all sales of Products. All shipping and packing labels on all products shipped to customers hereunder shall bear En Pointe's name as the shipping party. 18.BACKGROUND, ENUMERATIONS, AND HEARINGS. The "Background," enumerations, and hearings contained in these terms and conditions are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement. 19.SURVIVAL. The license granted by Shopping to En Pointe and its customers shall survive the termination of this Agreement except as amended by the joint agreement of both parties. 20.PUBLICITY. No release shall be made to the news media or to the general public relating to this Agreement without the prior written approval of an authorized executive party for the other party. 21.ASSIGNMENT. Neither party shall assign or transfer in any manner its obligations, rights, or interest or any part thereof under this Agreement whether by written agreement or operations of law without the 5 prior written consent of an authorized executive officer of the nonassigning party, which consent may not be unreasonably withheld. Any assignment in contravention of this Agreement is null and void. The foregoing shall not apply to the assignment by En Pointe to any parent, successor or affiliate. 22.GOVERNING LAW; VENUE. The agreements contained herein shall be governed by, and construed in accordance with, the laws of the State of California without giving effect to the principles of conflicts of law. As to any disputes between En Pointe and Shopping, the parties hereto irrevocable agree that, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, other than matters pertaining to injunctive relief including, without limitation, temporary restraining orders, preliminary injunctions and permanent injunctions, shall be determined by binding arbitration before the Judicial Arbitration and Mediation Service in Los Angeles County, California. The parties hereto waive any right to trial by jury with regard to any dispute between them hereunder. Judgement upon any arbitration award rendered shall be and may be entered in any court having jurisdiction thereof, provided that no awards for punitive damages may be rendered or entered as judgements. It is hereby agreed that the parties shall be permitted to conduct such discovery as the arbitrator may permit. The parties submit to the exclusive jurisdiction of the United States District Court for the Central District of California, Western Division, over any action, suit or proceeding or matter pertaining to injunctive relief, including, without limitation, temporary restraining orders, preliminary injunctions and permanent injunctions, arising out of or relating to this Agreement or the transactions contemplated by this Agreement, except to the extent that said Court does not have subject-matter jurisdiction, in which case the parties irrevocable submit to the exclusive jurisdiction of the Superior Court of the County of Los Angeles, State of California, over any such action, suite, or proceeding, pertaining to injunctive relief, including, without limitation, temporary restraining orders, preliminary injunctions and permanent injunctions. 23.ENTIRE AGREEMENT. This document contains the entire agreement between the parties and supersedes any previous understandings , commitments, or agreements, oral or written, with respect to agreement between the parties. No alteration of or amendment to this Agreement shall be effective unless in writing and signed by an authorized executive officer of each party. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. En Pointe Technologies Sales, Inc. Shopping.com By: By: \s\ Robert J. McNulty ------------------------------ -------------------------- EX-10.15 3 AGREEMENT WITH PROFIT PRO, INC. 1 EXHIBIT 10.15 AGREEMENT WITH PROFIT PRO, INC. DATED FEBRUARY 10, 1998 2 INTERNET (WebEPC) AGREEMENT THIS Agreement entered into this 30th day of January, 1998, by and between Profit Pro, Inc., a Utah corporation, located at 114 West Business Park Drive, Draper, Utah 84020, and SHOPPING.COM (hereinafter "Customer") located at 2101 East Coast Highway, Corona del Mar, California 92625. 1. Unless otherwise terminated pursuant to this Agreement, this Agreement shall be in effect for a period of twenty-four (24) months and shall automatically renew on a yearly basis thereafter. 2. Customer will link to Profit Pro, Inc.'s web site and utilize the lookup software. Profit Pro, Inc. will work with Customer in order to provide a link that looks similar to that of Customer's site (Shopping.com). 3. Customer will assign a full time person to manage the information, including but not limited to the change of product lines, prices, and vendors. 4. Customer will work with Non-Profit Pro Rated vendors/manufacturers (if any) to provide Profit Pro, Inc. with all data/information necessary to put them on the Profit Pro, Inc. System. Customer will be responsible for all costs associated with the same. 5. Customer hereby indemnifies and agrees to hold harmless Profit Pro, Inc. from and against any and all claims, demands, and actions, and any liabilities, damages, or expenses resulting therefrom, including court costs and reasonable attorney fees, arising out of or relating to the services performed by Profit Pro, Inc., hereunder. 6. The work performed under this Agreement will be performed entirely at the Customer's request, and the Customer assumes all responsibility for any loss or damage in connection with work. 7. This Agreement shall be governed and construed in all respects in accordance with the laws of the State of Utah. 8. The parties are and shall be independent to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties. Neither party shall be responsible for any act or admission of the other or any employee of the other. 9. If any provision(s) of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality and or enforceability of the remaining provisions shall not in any way be effected or impaired. 10. Customer agrees to pay Profit Pro for the following: Start up Fee $7,500.00 Monthly Access Fee $2,500.00 Per Hit Charge (based on the number of individual visits to Profit Pro site) Monthly visits (1 through 5000) No Charge Monthly visits (5001+) .25 per visit 3 IN WITNESS WHEREOF, Customer has caused this Agreement to be executed by their duly authorized representative on the date and year first above written. Profit Pro, Inc. Signature /s/ [SIG] ----------------------------------------------------------------------- Date 1/30/98 ---------------------------------------------------------------------------- Customer Name SHOPPING.COM ------------------------------------------------------------------- Authorized Signature /s/ [SIG] ------------------------------------------------------------ Date 1-30-98 ---------------------------------------------------------------------------- Address 2101 E. Coast Highway ------------------------------------------------------------------------- City Corona del Mar State CA Zip 98625 ---------------------------------------- --------- ---------------- Phone No. (714) 640-4394 Fax No. 714 640-4374 Email hay@shopping.com --------------------- ----------------- ------------------ [PROFIT PRO LOGO] EX-99.1 4 PRESS RELEASE DATED FEBRUARY 10, 1998 1 EXHIBIT 99.1 PRESS RELEASE DATED FEBRUARY 10, 1998 2 [Wall Street Relations Group Letterhead]
COMPANY CONTACT: MEDIA AND INVESTOR CONTACT: - ---------------- --------------------------- Dr. Ogden Forbes, Chief Knowledge/Research Officer Pamela Constantino, President Shopping.com Wall Street Relations Group Tel: 714/640-4393 Tel: 714/250-9040 oforbes@shopping.com http://WallStreetRelations.com
FOR IMMEDIATE RELEASE - --------------------- SHOPPING.COM SIGNS NATIONAL MARKETING AND DISTRIBUTION AGREEMENT WITH EN POINTE TECHNOLOGIES 200+ Sale Force to Sell Shopping.com's Products to Fortune 500 Companies CORONA DEL MAR, CALIF. - FEB. 10, 1998 - SHOPPING.COM (OTCBB:IBUY), an innovative online retailer of a wide range of brand name consumer and business products, announced today that it has signed a two-year marketing and distribution agreement with En Pointe Technologies, Inc. (NASDAQ: ENPT), a leading national provider of information technologies and services. En Pointe's direct sales force, in excess of 200, will sell Shopping.com's 15,000 business and office products line to Fortune 500 companies. Shopping.com currently markets its vast array of products via its website on the Internet to medium-and small-size businesses. "En Pointe is a $500 million company that has established distribution channels directly to the Fortune 500 companies," said, Robert J. McNulty, chief executive officer of Shopping.com. "This agreement will enable Shopping.com to not only tap into En Pointe's extensive sales network, but to secure a stronger hold in the $120 billion business and office products industry." Shopping.com innovative Internet-based electronic retailer that markets an immense selection of low price, top brand name consumer and commercial products via its website. Utilizing state-of-the-art proprietary technology, Shopping.com offers Internet shoppers over one million products, ranging from computers, books and office supplies, to music Cds and videos. EX-99.2 5 PRESS RELEASE DATED FEBRUARY 11, 1998 1 EXHIBIT 99.2 PRESS RELEASE DATED FEBRUARY 9, 1998 2 [Shopping.com Letterhead] FOR IMMEDIATE RELEASE... SHOPPING.COM ENTERS $120 BILLION A YEAR AUTOMOTIVE AFTER-MARKET -Shopping.com signs agreement with auto parts look-up software manufacturer- CORONA DEL MAR, Calif. - (February 9, 1998) - Shopping.com (OTC:IBUY), a growing online retailer of a low priced and broad mix of consumer products, announced today that it has signed an agreement with Profit Pro, Inc. for the use of Profit Pro's cataloging software which will look up auto parts on Shopping.com's website. This software will allow web shoppers to search for an auto part and receive a part number with a price. This software will be available to Shopping.com customers as soon as the software customization process is completed. "We are pleased to be a part of the $120 billion automotive after-market as the agreement with Profit Pro Inc. gives our customers the convenience of shopping for their auto parts on-line without the hassle of calling or driving around to parts' stores and enforces our goal of being a one-stop online shopping center to Web consumers. We will continue to expand and strengthen our relationships with vendors like Profit Pro Inc. to offer even a larger selection of merchandise," stated Bob McNulty, Chief Executive Officer at Shopping.com. ABOUT SHOPPING.COM Shopping.com, headquartered in Corona del Mar, CA, is a growing online retailer offering a large selection of top brand name consumer products organized by category and targets both the consumer and commercial markets. Utilizing state-of-the-art proprietary systems technology, Shopping.com offers Internet shoppers over one million products, ranging from computers, books and office supplies to Cds, with low prices and fast delivery using direct vendor shipping, secure on-line payment protection and e-mail services to provide a user-friendly web shopping experience. Visit Shopping.com's Superstore website at WWW.SHOPPING.COM. For further information contact: Dr. Olden Forces, Chief Knowledge and Research Officer, (714) 640- 4393, oforbes@shopping.com or Brenda Eames, Investor Relations (310) 796-0229, i3com@aol.com. -----END PRIVACY-ENHANCED MESSAGE-----