STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "AGREEMENT") is made and entered
into as of March 28, 2000 (the "EFFECTIVE DATE") by and among XxxxxxXxxxx.xxx,
Inc., a Delaware corporation (the "COMPANY"), and the parties listed on the
Schedule of Investors attached to this Agreement as EXHIBIT A (each hereinafter
individually referred to as an "INVESTOR" and collectively referred to as the
"INVESTORS").
WHEREAS, the Company desires to sell to the Investors, and the
Investors desire to purchase from the Company, shares of the Company's Common
Stock on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
1. AGREEMENT TO PURCHASE AND SELL STOCK.
1.1 AUTHORIZATION. As of the Closing (as defined below) the
Company will have authorized the issuance, pursuant to the terms and conditions
of this Agreement, of up to 2,273,628 shares of the Company's Common Stock, par
value $0.01 per share.
1.2 AGREEMENT TO PURCHASE AND SELL. The Company agrees to sell
to each Investor at the Closing, and each Investor agrees, severally and not
jointly, to purchase from the Company at the Closing, the number of shares of
Common Stock at the price per share and type of consideration set forth beside
such Investor's name on EXHIBIT A. Cash consideration paid by an Investor shall
be allocated among all shares purchased by such Investor so that all of such
shares will be "fully paid" under applicable law. The shares of Common Stock
purchased and sold pursuant to this Agreement will be collectively hereinafter
referred to as the "PURCHASED SHARES."
2. CLOSING. The purchase and sale of the Purchased Shares will take
place at the offices of Fenwick & West LLP, Two Palo Alto Square, Palo Alto,
California, at 10:00 a.m. Pacific Time, on that certain date on which all
applicable waiting periods (and all extensions thereof) under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX XXX") shall have
expired or otherwise been terminated (or such later date following the
satisfaction or waiver of all of the conditions set forth in Sections 5 and 6
hereof) or at such other time and place as the Company and the Investors
mutually agree upon (which time and place are referred to in this Agreement as
the "CLOSING"). At the Closing, the Company will deliver to each Investor a
certificate representing the number of Purchased Shares that such Investor has
agreed to purchase hereunder as shown on EXHIBIT A against delivery to the
Company by such Investor of the full purchase price of such Purchased Shares set
forth beside such Investor's name on EXHIBIT A.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Investor as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
has been duly incorporated and organized, and is validly existing in good
standing, under the laws of the State of Delaware. The Company has the corporate
power and authority to enter into and
perform this Agreement, to own and operate its properties and assets and to
carry on its business as currently conducted and as presently proposed to be
conducted. The Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where failure to be so
qualified would have a material adverse effect on the business, assets or
financial condition of the Company taken as a whole.
3.2 CAPITALIZATION. The capitalization of the Company
immediately prior to the Closing consists of the following:
(a) PREFERRED STOCK. A total of 5,000,000 authorized
shares of preferred stock, par value $0.01 per share, of which none are issued
and outstanding.
(b) COMMON STOCK. A total of 30,000,000 authorized
shares of common stock, par value $0.01 per share (the "COMMON STOCK"), of which
approximately 14,108,696 shares were issued and outstanding as of March 20, 2000
(subject to increase only by employee stock option exercises subsequent to March
20, 2000).
(c) OPTIONS, WARRANTS, RESERVED SHARES. Except for
(i) the rights of first refusal granted to certain stockholders under Section 9
of that certain Stockholders' Agreement dated as of January 13, 1999, as amended
(the "STOCKHOLDERS' AGREEMENT"), by and among the Company and such stockholders
(the "EXISTING REFUSAL RIGHTS"), (ii) the 3,685,824 shares of Common Stock
reserved for issuance under the Company's stock option plans under which options
to purchase 2,001,575 shares are outstanding as of March 20, 2000 (subject to
increase prior to the Closing due to option grants in the ordinary course), and
(iii) options to purchase 150,000 shares of the Company's Common Stock issued
outside of the Company's stock option plans, there is no outstanding option,
warrant, right (including conversion or preemptive rights) or agreement for the
purchase or acquisition from the Company of any shares of its capital stock or
any securities convertible into or ultimately exchangeable or exercisable for
any shares of the Company's capital stock. Apart from the exceptions noted in
this Section 3.2(c), and except for any rights of first refusal held by the
Company to purchase shares of its stock issued under the Company's stock option
plans, no shares of the Company's outstanding capital stock, or stock issuable
upon exercise or exchange of any outstanding options, warrants or rights, or
other stock issuable by the Company, are subject to any preemptive rights,
rights of first refusal or other rights to purchase such stock (whether in favor
of the Company or any other person), pursuant to any agreement or commitment of
the Company.
(d) The outstanding shares of the capital stock of
the Company are duly authorized and validly issued, fully paid and
nonassessable.
3.3 DUE AUTHORIZATION. All corporate action on the part of the
Company's directors and stockholders necessary for the authorization, execution,
delivery of, and the performance of all obligations of the Company under, this
Agreement, the authorization, issuance, reservation for issuance and delivery of
all of the Purchased Shares being sold under this Agreement has been taken or
will be taken prior to the Closing, and this Agreement constitutes a valid and
legally binding obligation of the Company, enforceable in accordance with its
terms, except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization or others laws of general application relating to or affecting
the enforcement of creditors' rights generally and (ii) the effect of rules of
law governing the availability of equitable remedies.
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3.4 VALID ISSUANCE OF STOCK.
(a) The Purchased Shares, when issued and paid for as
provided in this Agreement will be duly authorized and validly issued, fully
paid and nonassessable.
(b) Based in part on the representations made by the
Investors in Section 4 hereof, the offer and sale of the Purchased Shares solely
to the Investors in accordance with this Agreement are exempt from the
registration and prospectus delivery requirements of the U.S. Securities Act of
1933, as amended (the "1933 ACT") and the securities registration and
qualification requirements of the currently effective provisions of the
securities laws of the States in which the Investors are resident based upon
their addresses set forth on the Schedule of Investors attached hereto as
EXHIBIT A.
3.5 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority is required on
the part of the Company in order to enable the Company to execute, deliver and
perform its obligations under this Agreement EXCEPT FOR such qualifications or
filings under applicable securities laws as may be required in connection with
the transactions contemplated by this Agreement. All such qualifications and
filings will, in the case of qualifications, be effective on the Closing and
will, in the case of filings, be made within the time prescribed by law.
3.6 COMMISSION FILINGS AND FINANCIAL STATEMENTS. The Company
has filed all forms, reports and documents (the "SEC DOCUMENTS") required to be
filed by it with the U.S. Securities and Exchange Commission (the "COMMISSION")
pursuant to the 1933 Act or the U.S. Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), as the case may be, and the rules and regulations of the
Commission thereunder since January 13, 1999 through the date of this Agreement.
As of their respective filing dates, the SEC Documents complied in all material
respects with the requirements of the 1933 Act or the Exchange Act, as the case
may be, and the rules and regulations of the Commission thereunder applicable to
such SEC Documents, and none of the SEC Documents contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. As of their respective
filing dates, the financial statements of the Company included in the SEC
Documents complied as to form in all material respects with the applicable
accounting requirements and the rules and regulations of the Commission
thereunder and were prepared in accordance with generally accepted accounting
principles consistently applied (except as may be indicated in the notes
thereto) and fairly presented, in all material respects, the financial position
of the Company as at the dates thereof and the results of operations and cash
flows of the Company for the periods then ended (subject, in the case of
unaudited statements, to normal, recurring audit adjustments not material in
scope or amount).
3.7 ABSENCE OF CHANGES. Since December 31, 1999 through the
date of this Agreement, there has not been (i) any material adverse change in
the business, assets or financial condition of the Company, (ii) any transaction
that is material to the Company, except transactions entered into in the
ordinary course of business, (iii) any obligation, direct or contingent, that is
material to the Company incurred by the Company, except obligations
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incurred in the ordinary course of business, (iv) any change in the capital
stock or outstanding indebtedness of the Company that is material to the
Company, other than the authorization by the Board of Directors (the "BOARD") of
the Company of an increase in the number of shares of the Company's Common Stock
subject to the Company's 1998 Equity Incentive Plan (the "PLAN") by additional
1,500,000 shares, (v) any dividend or distribution of any kind declared, paid or
made on the capital stock of the Company, or (vi) any loss or damage (whether or
not insured) to the property of the Company which has been sustained or will
have been sustained which has a material adverse effect on the business, assets
or financial condition of the Company.
3.8 SUBSIDIARIES. The Company does not presently own or
control, directly or indirectly, any interest in any other corporation,
partnership, trust, joint venture, association, or other entity, other than (i)
BigCharts Inc., a wholly-owned subsidiary of the Company, and (ii) a joint
venture established pursuant to that certain Joint Venture Agreement made on
January 6, 2000 between the Company and Financial Times Group Limited.
3.9 LITIGATION. There is no action, suit, proceeding, claim,
arbitration or investigation pending ("LITIGATION") (or, to the Company's
knowledge, currently threatened) against the Company, its activities, properties
or assets or, to the Company's knowledge, against any officer, director or
employee of the Company in connection with such officer's, director's or
employee's relationship with, or actions taken on behalf of, the Company, except
for any such Litigation that individually or in the aggregate would have no
material adverse impact on the Company's business.
3.10 STATUS OF PROPRIETARY ASSETS. The Company has full title
and ownership of, or is duly licensed under or otherwise authorized to use, all
patents, patent applications, trademarks, domain names, service marks, trade
names, copyrights, mask works, trade secrets, confidential and proprietary
information, designs and proprietary rights, necessary to enable it to carry on
its business as now conducted without any conflict with or infringement of the
rights of others. Notwithstanding the foregoing, no representation or warranty
is made with respect to (i) trademarks, service marks and other proprietary
rights licensed to the Company by CBS Broadcasting Inc. and/or its affiliates,
and/or (ii) the enforceability of any rights of the Company in, or the ability
of the Company to use, any trademarks or service marks containing the words
"MarketWatch" or "XxxxxxXxxxx.xxx." The Company has not received any written
communication from any party or agent thereof alleging that the Company's use of
the marks "MarketWatch" or "XxxxxxXxxxx.xxx" may infringe such party's trademark
rights.
3.11 COMPLIANCE WITH LAW AND DOCUMENTS. The Company is not in
violation or default of any provisions of its Certificate of Incorporation or
Bylaws, both as amended, and to the Company's knowledge, except for any
violations that individually or in the aggregate would have no material adverse
impact on the Company's business, the Company is in compliance with all
applicable statutes, laws, regulations and executive orders of the United States
of America and all states or other governmental bodies and agencies having
jurisdiction over the Company's business or properties. The Company has not
received any notice of any violation of any such statute, law, regulation or
order which has not been remedied prior to the date hereof. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby or thereby will not result in any such
violation or default, or be in conflict with or result in a violation or breach
of, with or without the passage of time or
4
the giving of notice or both, the Company's Certificate of Incorporation or
Bylaws, any judgment, order or decree of any court or arbitrator to which the
Company is a party or is subject, any agreement or contract of the Company that
is material to the Company's business (taken as a whole), or, to the Company's
knowledge, a violation of any statute, law, regulation or order, or an event
which results in the creation of any lien, charge or encumbrance upon any asset
of the Company, except for defaults and violations that individually or in the
aggregate would have no material adverse impact on the Company's business.
3.12 TITLE TO PROPERTY AND ASSETS. The properties and assets
the Company owns are owned by the Company free and clear of all mortgages, deeds
of trust, liens, encumbrances and security interests except for statutory liens
for the payment of current taxes that are not yet delinquent and liens,
encumbrances and security interests which arise in the ordinary course of
business and which do not affect material properties and assets of the Company.
With respect to the property and assets it leases, the Company is in material
compliance with such leases.
3.13 TAX RETURNS AND PAYMENTS. The Company has timely filed
all tax returns and reports required by law. All tax returns and reports of the
Company are true and correct in all material respects. The Company has paid all
taxes and other assessments due, except those, if any, currently being contested
by it in good faith.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTORS.
Each Investor hereby represents and warrants to, and agrees with, the Company,
severally and not jointly, that:
4.1 AUTHORIZATION. All corporate action on the part of such
Investor and its officers, directors and stockholders necessary for the
authorization, execution and delivery of, and the performance of all obligations
of such Investor under, this Agreement has been taken or will be taken prior to
the Closing, and this Agreement constitutes such Investor's valid and legally
binding obligation, enforceable in accordance with its terms except as may be
limited by (i) applicable bankruptcy, insolvency, reorganization or other laws
of general application relating to or affecting the enforcement of creditors'
rights generally and (ii) the effect of rules of law governing the availability
of equitable remedies. Each Investor represents that such Investor has full
power and authority to enter into this Agreement.
4.2 PURCHASE FOR OWN ACCOUNT. The Purchased Shares to be
purchased by such Investor hereunder will be acquired for investment for such
Investor's own account, not as a nominee or agent, and not with a view to the
public resale or distribution thereof within the meaning of the 1933 Act, and
such Investor has no present intention of selling, granting any participation
in, or otherwise distributing the same. If not an individual, such Investor also
represents that such Investor has not been formed for the specific purpose of
acquiring Purchased Shares.
4.3 DISCLOSURE OF INFORMATION. Such Investor has received or
has had full access to all the information it considers necessary or appropriate
to make an informed investment decision with respect to the Purchased Shares to
be purchased by such Investor under this Agreement. Such Investor further has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Purchased
5
Shares and to obtain additional information (to the extent the Company possessed
such information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to such Investor or to which such
Investor had access. The foregoing, however, does not in any way limit or modify
the representations and warranties made by the Company in Section 3.
4.4 INVESTMENT EXPERIENCE. Such Investor understands that the
purchase of the Purchased Shares involves substantial risk. Such Investor: (i)
has experience as an investor in securities of companies in the development
stage and acknowledges that such Investor is able to fend for itself, can bear
the economic risk of such Investor's investment in the Purchased Shares and has
such knowledge and experience in financial or business matters that such
Investor is capable of evaluating the merits and risks of this investment in the
Purchased Shares and protecting its own interests in connection with this
investment and/or (ii) has a preexisting personal or business relationship with
the Company and certain of its officers, directors or controlling persons of a
nature and duration that enables such Investor to be aware of the character,
business acumen and financial circumstances of such persons.
4.5 ACCREDITED INVESTOR STATUS. Such Investor is an
"accredited investor" within the meaning of Regulation D promulgated under the
0000 Xxx.
4.6 RESTRICTED SECURITIES. Such Investor understands that the
Purchased Shares are characterized as "restricted securities" under the 1933 Act
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under the 1933 Act and applicable
regulations thereunder such securities may be resold without registration under
the 1933 Act only in certain limited circumstances. In this connection, such
Investor represents that such Investor is familiar with Rule 144 of the
Commission, as presently in effect, and understands the resale limitations
imposed thereby and by the 1933 Act. Such Investor understands that the Company
is under no obligation to register any of the securities sold hereunder except
as provided in that certain Registration Rights Agreement dated as of January
13, 1999, as amended, by and among the Company and certain stockholders.
4.7 FURTHER LIMITATIONS ON DISPOSITION. Without in any way
limiting the representations set forth above, such Investor further agrees not
to make any disposition of all or any portion of the Purchased Shares unless and
until:
(a) there is then in effect a registration statement under the
1933 Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(b) such Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a
statement of the circumstances surrounding the proposed disposition,
and, at the expense of such Investor or its transferee, with an opinion
of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such securities under the
1933 Act.
Notwithstanding the provisions of paragraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required for any transfer
of any Purchased Shares in compliance with Commission Rule 144; PROVIDED that in
each of the foregoing cases (other than any transfer of
6
any Purchased Shares pursuant to such a registration statement or in compliance
with Commission Rule 144) the transferee agrees in writing to be subject to the
terms of this Section 4 (other than Section 4.5) to the same extent as if the
transferee were an original Investor hereunder.
4.8 LEGENDS. It is understood that the certificates evidencing
the Purchased Shares will bear the legend set forth below:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY
PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
The legend set forth above shall be removed by the Company from any certificate
evidencing Purchased Shares if a registration statement under the 1933 Act is at
that time in effect with respect to the legended security or if such security
can be freely transferred in a public sale without such a registration statement
being in effect and if such transfer will not jeopardize the exemption or
exemptions from registration pursuant to which the Company issued the Purchased
Shares.
In addition, it is understood that the certificates evidencing the Purchased
Shares will bear the legends set forth below, or legends substantially
equivalent thereto:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RIGHTS OF FIRST REFUSAL AS SET FORTH IN A STOCKHOLDERS' AGREEMENT DATED
AS OF JANUARY 13, 1999 ENTERED INTO BY THE HOLDER OF THESE SHARES, THE
COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY. A COPY OF SUCH
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH RIGHT
OF FIRST REFUSAL IS BINDING ON CERTAIN TRANSFEREES OF THESE SHARES.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
AGREEMENTS AND RESTRICTIONS WITH REGARD TO THE VOTING OF SUCH SHARES,
AS PROVIDED IN A STOCKHOLDERS' AGREEMENT DATED AS OF JANUARY 13, 1999
ENTERED INTO BY THE ORIGINAL HOLDER OF THESE SHARES, THE CORPORATION
AND CERTAIN STOCKHOLDERS OF THE CORPORATION. A COPY OF SUCH AGREEMENT
IS ON FILE AT THE PRINCIPAL OFFICE OF THE CORPORATION.
The legends set forth above shall be removed by the Company from any certificate
evidencing Purchased Shares upon the termination of such Stockholders'
Agreement.
7
5. CONDITIONS TO INVESTORS' OBLIGATIONS AT CLOSING. The obligations of
each Investor under Section 2 of this Agreement are subject to the fulfillment
or waiver, on or before the Closing, of each of the following conditions, the
waiver of which shall not be effective against any Investor who does not consent
to such waiver, which consent may be given by written, oral or telephone
communication to the Company, its counsel or to special counsel to the
Investors:
5.1 REPRESENTATIONS AND WARRANTIES TRUE. Each of the
representations and warranties of the Company contained in Section 3 shall be
true and complete on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
5.2 PERFORMANCE. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing and
shall have obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein. The other Investor shall
simultaneously be completing the purchase of the Purchased Shares to be
purchased by such other Investor.
5.3 COMPLIANCE CERTIFICATE. The Company shall have delivered
to each Investor at the Closing a certificate signed on its behalf by its
President, Chief Executive Officer, or Chief Financial Officer certifying that
the conditions specified in Sections 5.1 and 5.2 have been fulfilled and stating
that there shall have been no material adverse change in the business, financial
condition, or assets of the Company since December 31, 1999.
5.4 SECURITIES EXEMPTIONS. The offer and sale of the Purchased
Shares to the Investors pursuant to this Agreement shall be exempt from the
registration requirements of the 1933 Act and the registration and/or
qualification requirements of all other applicable state securities laws.
5.5 PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to each Investor and to the Investors' special counsel, and they shall
each have received all such counterpart originals and certified or other copies
of such documents as they may reasonably request. Such documents shall include
(but not be limited to) the following:
(a) CERTIFIED CHARTER DOCUMENTS. A copy of the
Amended and Restated Certificate of Incorporation and the Bylaws of the
Company (as amended through the date of the Closing), certified by the
Secretary of the Company as true and correct copies thereof as of the
Closing.
(b) CORPORATE ACTIONS. A copy of the resolutions of
the Board of Directors and, if required, the stockholders of the
Company evidencing the approval of this Agreement, the issuance of the
Purchased Shares and the other matters contemplated hereby.
8
5.6 XXXX-XXXXX-XXXXXX ACT. All applicable waiting periods (and
all extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations
of the Company to each Investor under this Agreement are subject to the
fulfillment or waiver on or before the Closing of each of the following
conditions by such Investor:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of such Investor contained in Section 4 shall be true and complete on
the date of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
6.2 PAYMENT OF PURCHASE PRICE. Each Investor shall have
delivered to the Company the purchase price specified for such Investor on
EXHIBIT A in accordance with the provisions of Section 2.
6.3 SECURITIES EXEMPTIONS. The offer and sale of the Purchased
Shares to the Investors pursuant to this Agreement shall be exempt from the
registration requirements of the 1933 Act, the qualifications requirements of
the Law and the registration and/or qualification requirements of all other
applicable state securities laws.
6.4 PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to the Company and to the Company's legal counsel, and the Company
shall have received all such counterpart originals and certified or other copies
of such documents as it may reasonably request.
6.5 XXXX-XXXXX-XXXXXX ACT. All applicable waiting periods (and
all extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.
7. GENERAL PROVISIONS.
7.1 SURVIVAL OF WARRANTIES. The representations, warranties
and covenants of the Company and the Investors contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of any of the Investors, their counsel or
the Company, as the case may be.
7.2 EXISTING REFUSAL RIGHTS. Each of the Investors hereby
waives (i) its right to notice with respect to the Existing Refusal Rights (as
defined in Section 3.2) as they apply to the issuance and sale of the Purchased
Shares and (ii) agrees that such issuance and sale pursuant to this Agreement
satisfies its Existing Refusal Rights with respect to the issuance and sale of
the Purchased Shares.
7.3 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
9
7.4 GOVERNING LAW. This Agreement shall be governed by and
construed under the internal laws of the State of Delaware, without reference to
principles of conflict of laws or choice of laws.
7.5 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
7.6 HEADINGS. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
7.7 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on EXHIBIT A or, in the case of the Company, at
XxxxxxXxxxx.xxx, Inc.,
000 Xxxxxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or at such other address as any party or the Company may designate by giving ten
(10) days advance written notice to all other parties.
7.8 NO FINDER'S FEES. Each party represents that it neither is
nor will be obligated for any finder's or broker's fee or commission in
connection with this transaction. Each Investor agrees to indemnify and to hold
harmless the Company from any liability for any commission or compensation in
the nature of a finders' or broker's fee (and any asserted liability) for which
the Investor or any of its officers, partners, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless each Investor
from any liability for any commission or compensation in the nature of a
finder's or broker's fee (and any asserted liability) for which the Company or
any of its officers, employees or representatives is responsible.
10
7.9 COSTS, EXPENSES. Each party to this Agreement shall bear
its own fees and expenses (including, without limitation, the fees and expenses
of its legal counsel) in connection with the preparation, execution and delivery
of this Agreement and the issuance of the Purchased Shares.
7.10 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
Purchased Shares representing at least a majority of the aggregate number of
shares of the Purchased Shares (excluding any of such shares that have been sold
to the public or pursuant to Commission Rule 144). Any amendment or waiver
effected in accordance with this Section shall be binding upon each holder of
any Purchased Shares at the time outstanding, each future holder of such
securities, and the Company; PROVIDED, HOWEVER, that no condition set forth in
Section 5 may be waived with respect to any Investor who does not consent
thereto.
7.11 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
7.12 ENTIRE AGREEMENT. This Agreement, together with all
exhibits and schedules hereto, constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior negotiations, correspondence, agreements,
understandings duties or obligations between the parties with respect to the
subject matter hereof.
7.13 FURTHER ASSURANCES. From and after the date of this
Agreement, upon the request of any Investor or the Company, the Company and the
Investors shall execute and deliver such instruments, documents or other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
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11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
XXXXXXXXXXX.XXX, INC. CBS BROADCASTING INC.
By:/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------- -----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxx
--------------------- ---------------------------
Title: CEO Title: Executive President, Chief
---------------------- Financial Officer
--------------------------
DATA BROADCASTING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
----------------------------
Title: President and CEO
---------------------------
