EXHIBIT 10.08
BROADVIEW PARTNERS GROUP SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of September
29, 1997, is made by and between Broadview Partners Group (the "Subscriber"),
and NetSelect, Inc., a Delaware corporation (the "Corporation").
W I T N E S S E T H :
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WHEREAS, the capitalization of the Corporation consists of (x)
35,000,000 shares of NetSelect Class A Common Stock, par value $0.001 per share
(the "NetSelect Class A Common Stock"); (y) 10,000,000 shares of NetSelect Class
B Common Stock, par value $0.001 per share (the "NetSelect Class B Common
Stock"); and (z) 5,000,000 shares of Preferred Stock, par value $0.001 per share
(the "Preferred Stock"), of which 1,647,059 shares of Preferred Stock have been
designated as Series A Convertible Preferred Stock (the "Series A Preferred
Stock"), 352,941 shares of Preferred Stock have been designated as Series B
Convertible Preferred Stock (the "Series B Preferred Stock"), and 700,000 shares
of Preferred Stock have been designated as Series C Convertible Preferred Stock
(the "Series C Preferred Stock"); and
WHEREAS, the Subscriber desires to acquire, on the date hereof, an
equity interest in the Corporation, representing 13,652 of the issued and
outstanding shares of Series C Preferred Stock (the "Subscription Shares") to be
purchased by the Subscriber in consideration of a capital contribution by the
Subscriber to the Corporation in the aggregate amount of $100,000.
NOW, THEREFORE, in consideration of these premises, the mutual
covenants and agreements contained in this Agreement, and in reliance upon the
representations and warranties and covenants set forth herein, the Subscriber
hereby agrees with the Corporation as follows:
SECTION 1. CAPITALIZATION OF PARTNERSHIP.
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1.1. Subscriptions. The Subscriber hereby subscribes for the
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Subscription Shares.
1.2. Contribution of Cash. The Subscriber shall purchase from the
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Corporation, on September 29, 1997, the Subscription Shares for a cash payment
in an amount equal to $100,000 (the "Contribution Amount").
1.3. The Closing. The Closing of the transactions contemplated by
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Section 1.1 and Section 1.2 hereof (the "Closing") shall take place on September
29, 1997 (the "Closing Date") at the offices of Battle Xxxxxx LLP, Park Avenue
Tower, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other place and
time as the parties shall mutually agree.
1.4. Deliveries at the Closing.
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(a) Deliveries at Closing by the Corporation. At the Closing, the
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Corporation shall deliver to the Subscriber, stock certificates representing the
duly authorized, validly issued, fully paid and nonassessable Subscription
Shares.
(b) Deliveries at Closing by the Subscribers. At the Closing, the
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Subscriber shall:
(i) deliver by wire transfer in immediately available funds the
Contribution Amount;
(ii) deliver to the Corporation that certain Amendment No. 1 to the
NetSelect, Inc. Stockholders Agreement, dated as of the date hereof
("Amendment No. 1 to the NetSelect, Inc. Stockholders Agreement"), by and
among the Corporation and its stockholders, duly executed by Subscriber;
(iii) deliver to the Corporation that certain Investor Representation
Letter, dated as of the date hereof (the "Investor Representation Letter"),
between the Corporation and the Subscriber, duly executed by Subscriber;
(iv) deliver to the Corporation this Agreement, duly executed by
Subscriber; and
(v) deliver to the Corporation any other documents, writings,
certificates or opinions as may be requested by the Corporation.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER.
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2.1. The Subscriber hereby represents and warrants to, and
covenants with the Corporation as follows:
(i) The Subscriber is purchasing the Subscription Shares for its
own account and not on behalf of any other person, group or entity, the
Subscriber is aware and acknowledges that the Subscription Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered or sold unless the Subscription Shares are registered
under the Securities Act or an exemption from the registration requirements of
the Securities Act is available;
(ii) The Subscriber has had a reasonable opportunity to ask
questions of and receive answers from the Corporation concerning the Corporation
and the Subscription Shares, and all such questions, if any, have been answered
to the full satisfaction of the Subscriber;
(iii) No person or entity other than the Subscriber and a general
partner or limited partner of the Subscriber has any rights in and to the
Subscription Shares or any right to acquire the Subscription Shares;
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(iv) The Subscriber has such knowledge and expertise in financial
and business matters that the Subscriber is capable of evaluating the merits and
risks involved in an investment in the Subscription Shares; and the Subscriber
is financially able to bear the economic risk of the investment in the
Subscription Shares, including a total loss of such investment;
(v) The Subscriber is not purchasing the Subscription Shares with
a view to distribution, and has no present intention of dividing or allowing
others to participate in the investment or of reselling, or otherwise
participating directly or indirectly, in a distribution of the Subscription
Shares, and shall not make any sale, transfer or pledge thereof without
registration under the Securities Act and any applicable securities laws of any
state or unless an exemption from registration is available;
(vi) The Subscriber understands that the Subscription Shares are
being offered and sold to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Corporation is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings of
the Subscriber set forth herein in order to determine the applicability of such
exemptions and the suitability of Subscriber to acquire the Subscription Shares;
(vii) The Subscriber expressly acknowledges and agrees that the
Corporation is relying upon the Purchaser's representations contained in this
Agreement; and
(viii) The Subscriber expressly agrees that Subscriber shall not
initiate a suit or cause of action against Corporation for the Corporation's
failure to obtain additional financing in the form of Series C Convertible
Preferred Stock; provided, however, the foregoing shall not bar Subscriber from
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bringing such suit as a result of fraudulent acts on the part of the
Corporation.
SECTION 3. MISCELLANEOUS.
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3.1. Fees and Expenses. Except as expressly provided herein each of
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the parties hereto shall each pay all of their own costs and expenses, including
any and all legal and accounting fees, incident to the negotiation, execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby whether or not such transactions shall be consummated.
3.2. Counterparts. This Agreement may be executed in two or more
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counterparts, all of which taken together shall constitute one instrument.
3.3. Binding Effect. All of the terms of this Agreement shall be
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binding upon the respective personal representatives, heirs and successors of
the parties hereto and shall inure to the benefit of and be enforceable by the
parties hereto and their respective personal representatives, heirs and
successors.
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3.4. Assignment. Neither this Agreement nor any right or interest
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hereunder may be assigned in whole or in part by any party without the prior
written consent of the other parties.
3.5. Entire Agreement and Amendment. This Agreement, the Investor
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Representation Letter and Amendment No. 1 to the NetSelect Stockholders
Agreement contains the entire agreement between the parties hereto with respect
to the subject matter hereof. No change, modification, extension, termination,
notice of termination, discharge, abandonment or waiver of this Agreement or any
of the provisions hereof, nor any representations, promise or condition relating
to this Agreement, shall be binding upon the parties hereto unless made in
writing and signed by the parties hereto.
3.6. Captions. The captions of Sections hereof are for convenience
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only and shall not control or affect the meaning or construction of any of the
provisions of this Agreement.
3.7. Notices. All notices or other communications to be given or
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made hereunder shall be in writing and shall be deemed given when delivered
personally or mailed, by registered or certified mail, return receipt requested,
postage prepaid, or overnight delivery, to the parties hereto, (a) if to the
Subscriber, x/x Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, High Street Tower, 000 Xxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, Attention: Xxxxxxxx Xxxx, Esq. or (b) if
to the Corporation, to NetSelect, Inc., 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx Xxxxxxx, XX 00000, Attention: Xxxxxx Xxxxx, Ph.D., with a copy to:
Battle Xxxxxx LLP, 75 East 55th Street, Park Avenue Tower, New York, New York
10022, Attention: Xxxxxxx X. Xxxxx, Esq.
3.8. Applicable Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware as applied to
residents of that State executing contracts wholly to be performed in that
State. The Subscriber hereby expressly submits to the jurisdiction of all
federal and state courts located in the State of Delaware and consents that any
process or notice of motion or other application to any of said courts or a
judge thereof may be served within or without such court's jurisdiction by
registered mail or by personal service, provided a reasonable time for
appearance is allowed. The Subscriber also waives any claim that Delaware is an
inconvenient forum.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date and year first above written.
BROADVIEW PARTNERS GROUP
By: Xxxxx X. Xxxxxx, Nominee
By:________________________________
Name: Xxxxx X. Xxxxxx
Title:
NETSELECT, INC.
By:___________________________________
Name: Xxxxxx Xxxxx, Ph.D.
Title: Chief Executive Officer
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date and year first above written.
BROADVIEW PARTNERS GROUP
By: Xxxxx X. Xxxxxx, Nominee
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Nominee
NETSELECT, INC.
By:___________________________________
Name: Xxxxxx Xxxxx, Ph.D.
Title: Chief Executive Officer
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