Exhibit 10.3
SUBSCRIPTION AGREEMENT dated as of the 2nd day of March,1999, between
FM/CCP Investment Partners, LLC, a Delaware limited liability company with
offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Buyer"), and Internet
Fashion Mall, LLC, a Delaware limited liability company, with its principal
place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the "Company").
W I T N E S S E T H:
WHEREAS, Xxxxxxxx Xxxxxxx and Xxxxx Xxxxxxx (collectively "Narasin") and
Xxxxxxx X. Xxxxxx & Company, LLP ("RAE") are the sole members of, and the sole
owners of membership interests in the Company (all such membership interests in
the Company being hereinafter referred to singly as a "Membership Interest" and
collectively as "Membership Interests") of which Narasin owns an 80% Membership
Interest and RAE owns a 20% Membership Interest; and
WHEREAS, Buyer wishes to purchase a 5% Membership Interest (the "5%
Membership Interest") of the Company for $1,000,000; and
WHEREAS, in addition, Buyer wishes to purchase a 6% promissory note of the
Company in the principal amount of $1,000,000 (the "Note") and a warrant (the
"Warrant"), for $1,000,000; and
WHEREAS, the Company desires to sell the 5% Membership Interest, the Note
and the Warrant to Buyer; and
WHEREAS, upon the purchase by Buyer of the 5% Membership Interest, Buyer
shall be a member of the Company with a 5% Membership Interest and the
Membership Interests of Narasin and RAE shall be reduced to 76% and 19%,
respectively; and
WHEREAS, assuming, on a PRO FORMA basis, the exercise by Xxxxxx Xxxxxx
("Xxxxxx") of his options to purchase up to a 3% Membership Interest (but not
his options to purchase certain shares calculated by reference to an additional
2% Membership Interest), Buyer shall be a member of the Company with a 5%
Membership Interest in accordance with the letter of even date herewith from the
Company to Buyer and Xxxxxx concerning the capitalization of the Company (the
"Capitalization Side Letter") and the Membership Interests of Narasin and RAE
shall be reduced to 73.6% and 18.4%, respectively;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The Company hereby sells, assigns and transfers the 5% Membership
Interest, the Note and the Warrant to Buyer and Buyer, in reliance on the
representations, warranties and covenants contained herein, hereby purchases the
same, for aggregate consideration of $2,000,000.00, payable on the date of the
execution of this Agreement or on the first business day thereafter (such date
of payment being hereafter referred to as the "Closing Date").
2. The Buyer hereby agrees to be bound by the terms and conditions of the
Amended and Restated Limited Liability Company Agreement by and among Narasin
and RAE, a copy of which is annexed hereto as Exhibit A (the "LLC Agreement")
and Narasin and RAE hereby consent to the admission of Buyer as a member of the
Company.
3. The Buyer hereby agrees that for a period of twelve (12) months
following the consummation of an initial public offering ("IPO") of the common
stock or other equity securities of the Company or the IPO Company (as defined
below) (the "Lock Up Period"), it shall not, without the prior written consent
of the Company or the IPO Company, as the case may be, directly or indirectly,
including by entering into any Hedging Transaction (as defined below), offer,
sell, contract to sell, grant any option for the sale of, or otherwise dispose
of ("Dispose of"), any security or other instrument which by its terms is
convertible into, exercisable for, or exchangeable for shares of common stock or
other equity securities of the Company or the IPO Company, as the case may be.
As used herein, (a) the term "IPO Company" means any corporation or other
entity, the shares or other equity securities of which are issued to the members
of the Company in consideration for the conversion, exchange or cancellation of
the Membership Interests and/or the transfer of the Membership Interests to the
IPO Company; and (b) the term "Hedging Transaction" shall mean any short sale or
grant of any right (including, without limitation, any put or call option) with
respect to any security (other than a broad-based market basket or index) that
includes, relates to or derives any significant part of its value from the
common stock or such other equity securities. Notwithstanding the foregoing
provisions of this Section 3, (i) Buyer shall have the right to transfer all or
any portion of his or its shares of the IPO Company to any Permitted Transferee,
subject to the agreement of the managing underwriter for the initial public
offering and (ii) if Narasin or XXX xxxxx any of his or its securities of the
Company during the Lock-up Period, Buyer shall not be restricted under this
Section 3 from selling the same percentage of its securities of the Company as
the securities being sold by Narasin or RAE represent of the securities of the
Company held by him or it, as the case may be, and if Narasin or RAE is released
from his or its "lock-up" agreement, Buyer shall be similarly released from the
restrictions contained in this Section 3. For purposes of this Agreement, the
term "Permitted Transferee" shall mean any transferee of any transfer or
transfers made, at any time or from time to time by Buyer or any such transferee
to (i) any member of Buyer or (ii) any Family Donee of members of Buyer, subject
to the prior approval of either Xxxxxx Xxxxxx or Xxxxxx Xxxxx, as manager of
Buyer. For purposes of this Agreement, the term "Family Donee" shall mean: (A)
any parent, child, lineal descendant or sibling of a member of Buyer, the spouse
of any of the foregoing, or the spouse of such member of Buyer; (B) any trust
established by a member of Buyer or any Family Donee described in clause (A)
above, or any trustee, custodian, fiduciary or foundation which will hold such
shares for charitable purposes or for the benefit of such member of Buyer or any
of the persons described in clause (A) above; PROVIDED, that Buyer or any person
described in clause (A) above shall exercise a deciding influence over the
voting of the Membership Interests or shares held by a Family Donee described in
this clause (B); or (C) any beneficiary (which is a Family Donee pursuant to
clause (A) or (B) above) of any trust constituting a member of Buyer or which is
itself a Family Donee.
4. The Buyer hereby agrees, represents, and warrants, as of the date hereof
and as of the Closing Date, that:
(a) It is acquiring the Membership Interest, the Note and the Warrant
for its own account (and not for the account of others) for investment and not
with a view to the distribution or resale thereof; provided that,
notwithstanding such intention, Buyer shall be free to transfer the 5%
Membership Interest in compliance with applicable legal requirements and the
provisions of this Agreement and the LLC Agreement;
(b) By virtue of its position, it has access to the same kind of
information which would be available in a registration statement filed under the
Securities Act of 1933, as amended (the "Act"), including, without limitation,
access to cash and barter contracts, the Company's books and records and
summaries of cash and barter clients;
(c) It is a sophisticated investor;
(d) Its members understand that they may not sell or otherwise dispose
of their share of the Membership Interest, the Note or the Warrant in the
absence of either a registration statement under the Act or an exemption from
the registration provisions of the Act; and
(e) The certificates representing the Note and the Warrant and any
certificate or other document evidencing Buyer's Membership Interest may contain
a legend thereon to the effect of (d) above.
5. The Company hereby agrees, represents and warrants, as of the date
hereof and as of the Closing Date, that:
(a) The Company (i) is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(ii) has all requisite limited liability company power and authority to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged; (iii) is duly qualified as a
foreign limited liability company and in good standing under the laws of each
jurisdiction in which it maintains physical facilities, except to the extent
that the failure to do so or be so would not in the aggregate have a material
adverse effect on the business, financial condition, results of operations or
prospects of the Company ("Material Adverse Effect"); and (iv) has the requisite
limited liability company power and authority to execute, deliver and perform
its obligations under this Agreement, the Capitalization Side Letter, the LLC
Agreement (in the form annexed hereto), the Note, the Warrant and the
Registration Rights Agreement (as hereinafter defined) (collectively, the
"Transaction Documents").
(b) The execution, delivery and performance by the Company of this
Agreement and the other Transaction Documents to which it is a party and the
transactions contemplated hereby and thereby (i) have been (or, in the case of
the Registration Rights Agreement, will be) duly authorized by all necessary
action of the Company or its Members; (ii) do not contravene the terms of the
Certificate of Formation or LLC Agreement or any contribution agreement or
retention agreement to which the Company and any member is a party, or any other
governing document of
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the Company, in each case which has previously been delivered to Buyer (and
which are herein annexed); and (iii) except for such violations, conflicts,
breaches, contraventions or Liens (as hereinafter defined) which would not in
the aggregate have a Material Adverse Effect, do not violate, conflict with or
result in any breach or contravention of or result in the creation of any lien,
charge, pledge, security interest, mortgage or other encumbrance (each, a
"Lien") under, any contractual obligation of the Company, or any requirement of
any federal, state or foreign law, rule or regulation (each, a "Requirement of
Law"), applicable to the Company; provided, however, that no representation,
warranty or agreement is made in this clause (iii) concerning any state
securities laws, rules or regulations as they relate to publicly-offered
securities or rules or regulations of the National Association of Securities
Dealers, Inc., Nasdaq or any exchange upon which the securities of the Company
(or the IPO Company) are proposed to be listed.
(c) No approval, consent, compliance, exemption, authorization, or
other action by, or notice to, or filing with, any federal, state or foreign
governmental agency, instrumentality, court or administrative authority
("Governmental Authority") or any other person in respect of any Requirement of
Law applicable to the Company and no lapse of a waiting period under a
Requirement of Law, is necessary or required in connection with the execution,
delivery or performance by the Company of this Agreement or any other
Transaction Documents to which it is a party or the transactions contemplated
hereby or thereby, except for any of the foregoing required under federal or
state securities laws, the rules and regulations promulgated by the National
Association of Securities Dealers, Inc., Nasdaq and any exchange upon which
securities of the Company (or the IPO Company) are proposed to be listed.
(d) This Agreement and the other Transaction Documents to which the
Company is a party have been, or in the case of the Registration Rights
Agreement will be, duly executed and delivered by the Company and each
constitutes, or in the case of the Registration Rights Agreement will
constitute, the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
(e) Except for matters materially reflected in the Company's bad debt
reserve in the approximate amount of $105,000 as of December 31, 1998, subject
to audit adjustments, there are no legal actions, suits, proceedings, claims,
material complaints, material disputes or investigations pending, or to the
knowledge of the Company threatened, at law, in equity, in arbitration or before
any Governmental Authority against the Company, Narasin or their respective
property or assets ("Judgments") which in the aggregate would have a Material
Adverse Effect. No injunction, writ, temporary restraining order, decree or
order of any nature has been issued by any court or other Governmental Authority
against the Company, Narasin or their respective property or assets, purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any of the other Transaction Documents.
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(f) The Membership Interests in the Company as of the date hereof
consist solely of the Membership Interests of RAE and Narasin described in the
preamble hereto. Except for this Agreement, any of the other Transaction
Documents and the other agreements and instruments being made by the Company
with or in favor of Buyer or Xxxxxx, and except for the Company's agreements
with Wit Capital, there are no options, warrants, conversion privileges or other
rights (collectively "Rights") presently outstanding to purchase or otherwise
acquire any Membership Interests in the Company and all such rights are
correctly reflected in the capitalization side letter. The issued and
outstanding Membership Interests are duly authorized and validly issued.
(g) The Company has delivered to Buyer its unaudited financial
statements (balance sheet and statements of operations) for the fiscal years
ended on, and as at December 31, 1996, 1997 and 1998 (the "FINANCIAL
STATEMENTS"). The Financial Statements fairly present the financial condition
and operating results of the Company in accordance with GAAP as of the
respective dates and for the respective periods indicated, subject to audit
adjustments.
(h) (i) As used herein, the term "Intellectual Property" shall mean
all worldwide intellectual property rights, including, without limitation, any
patent, trademark, service xxxx, trade name, copyright or any registration or
application therefor; and any know-how, trade secret, customer list, technology,
process, formula or other proprietary information; and any source code, object
code, flowchart, algorithm, display screen, layout, system architecture,
development tool or other software; and any license to any of the foregoing; and
all documents or other information in any machine or human understandable media
related to any of the foregoing. Intellectual Property which is used in or is
otherwise material to the business of the Company as currently conducted and as
it is expected to be conducted in the future is referred to as "Intellectual
Property Assets."
(ii) The Company directly owns, or is licensed or otherwise
possesses rights to use all Intellectual Property Assets that are necessary for
the operation of its business as presently conducted, with such exceptions as
have not had and are not reasonably likely to have a material adverse effect on
the business of the Company. To the knowledge of the Company, there is no
unauthorized use, infringement or misappropriation of any Intellectual Property
Assets by any third party, except for such use, infringement or
misappropriation, individually or in the aggregate as have not had and are not
reasonably likely to have a material adverse effect on the business of the
Company. To the knowledge of the Company, no Intellectual Property Assets are
subject to any outstanding Judgment restricting in any manner the use or
licensing thereof by the Company or infringes on or misappropriates any
Intellectual Property owned or used by any other person, except to the extent
any such Judgment, infringement or misappropriation, individually or in the
aggregate, has not had and is not reasonably likely to have a material adverse
effect on the business of the Company. The Company is the sole and exclusive
owner of, free of any Liens, and is registered with Network Solutions, Inc. with
respect to the "Xxxxxxxxxxx.xxx" and domain name, has submitted to, Network
Solutions, Inc. with respect to the "Xxxxxxxxxx.xxx" domain name.
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(i) Since December 31, 1998, the operations of the Company have been
conducted, in all material respects, in a manner consistent with past practice
and in accordance with the business plan presented heretofore to Buyer, taking
into account additional expenses incurred by the Company in preparing for the
IPO.
(j) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(k) No form of general solicitation or general advertising was used by
the Company or its representatives in connection with the offer or sale of the
5% Membership Interests. Assuming the accuracy of the representations and
warranties of Buyer set forth in Section 4, no registration, pursuant to the
provisions of the Securities Act or any state securities or "blue sky" laws, is
or will be required in connection with the offer, sale or issuance of the 5%
Membership Interest.
(l) Except for the finder's fee to be paid by the Company to Wit
Capital, there are no brokerage commissions, finder's fees or similar fees or
commissions payable by the Company in connection with the transactions
contemplated hereby based on any agreement, arrangement or understanding with or
known to the Company.
(m) Upon payment of the purchase price for the 5% Membership Interest,
the 5% Membership Interest will be duly authorized and validly issued, fully
paid and non-assesable and clear of all Liens or any adverse claims,
preferential arrangements or restrictions of any kind that were granted or
otherwise created by the Company (other than any of the foregoing set forth in
the LLC Agreement), including, without limitation, any restrictions on the
exercise of any attributes of ownership. Except as may be otherwise required by
law or as may be agreed to by Buyer (or any member of Buyer, any Family Donee,
or any subsequent member of Buyer, as the case may be), ownership of the 5%
Membership Interest will not obligate Buyer (or any member of Buyer, any Family
Donee or any subsequent member of Buyer, as the case may be), to make any
contribution to the capital of, or any loans or advances to, the Company.
(n) Neither this Agreement nor any other document, certificate,
instrument or written statement furnished or made available to Buyer, or to
counsel to Buyer, by or on behalf of the Company pursuant to this Agreement or
any of the other Transaction Agreements, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein and therein, viewing all of the foregoing documents,
certificates, instruments and written statements in the aggregate, not
misleading. To the best of the Company's knowledge, there is no fact which
materially adversely affects the business, operations, prospects, affairs,
conditions (financial or otherwise), properties or assets of the Corporation
which has not been set forth in this Agreement or in the other Transaction
Agreements, certificates, instruments or written statements furnished to Buyer
and its counsel by or on behalf of the Company pursuant to this Agreement.
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6. The Company agrees to pay the finder's fee to Wit Capital in connection
with this transaction and to fully indemnify Buyer against any and all claims in
respect thereof.
7. The Company hereby grants the following registration rights to Buyer:
Buyer, together with Xxxxxx, shall have the right to register the resale of
their respective shares of common stock of the IPO Company, including, without
limitation, any such shares underlying the Warrant (or other equity interests
issued to the public in the IPO of the Company or the IPO Company)
(collectively, the "Registrable Securities"), as follows: (i) on one occasion,
on Form S-3 (or an equivalent form), on a demand basis, at the Company's sole
expense (other than commissions, discounts and broker's fees and legal fees and
expenses of Xxxxxx and Buyer, which shall be borne by Xxxxxx and Buyer,
respectively), commencing upon the Company's eligibility to utilize such form
for offerings by selling security holders and ending on February 25, 2004,
subject to agreed-upon "blackout" periods; and (ii) on an unlimited number of
occasions, on a "piggyback" basis with respect to any registration by the IPO
Company of its common stock (other than on Form S-4, Form S-8 or equivalent
forms) and subject to customary exceptions (E.G., underwriter's cutbacks and
"blackout" periods), commencing upon the termination of Lock Up Period and
ending on February 25, 2004. In furtherance of such grant, the Company, for
itself and the IPO Company, as applicable and Buyer shall as soon as practicable
after the date hereof, use their respective reasonable efforts to promptly enter
into the Registration Rights Agreement among the Company (as aforesaid), Xxxxxx
and Buyer, which shall contain customary, mutually agreeable terms applicable to
the Company or the IPO Company (whichever first consummates an IPO).
Notwithstanding the foregoing, if the Company or the IPO Company is ineligible
to utilize Form S-3 (or an equivalent form) as a result of a failure to comply
with the requirements of such Form, then the Company or the IPO Company shall
register the Registrable Securities on Form S-1 or such other form as may be
available.
8. (a) "Covered Securities" means (i) all equity securities of the Company
or any IPO Company (for purposes of this Section 8, each, a "Company Entity" and
collectively, the "Company Entities"); (ii) all securities convertible into or
exchangeable for equity securities of the Company Entities; and (iii) all
options, warrants and other rights to purchase or otherwise acquire from the
Company Entities any such equity securities or securities convertible into or
exchangeable for such equity securities, in each case, issued prior to the
consummation of an IPO of the Company or the IPO Company, whichever is earlier
(collectively, "New Securities"); provided that the Covered Securities shall not
include any New Securities that are:
(i) issuable (A) pursuant to the Warrant, the options issued or
issuable to Xxxxxx, (B) to Buyer or any affiliate of Buyer or any person that
would be a Permitted Transferee of Buyer hereunder (assuming prior written
approval of the Manager of Buyer, exercised by Xxxxxx or Xxx Xxxxx) and/or their
respective permitted successors and assignors; provided the Company shall have
notified Buyer promptly, but in any event at least 10 days prior to the issuance
thereof, of the commencement of bona fide discussions contemplating proposed
issuances to persons (other than Xxxxxx or Xxxxxx Xxxxx, their respective
spouses, children and children's spouses) that would
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be Permitted Transferees, but that have not become Permitted Transferees
hereunder or (C) to Wit Capital and/or their respective permitted successors and
assigns;
(ii) distributed to all of the Members or stockholders of any of
the Company Entities (including Buyer and Xxxxxx) on the basis pro rata to their
Membership Interests or equity interests;
(iii) issued pursuant to the anti-dilution rights of any holder
of equity securities of any of the Company Entities;
(iv) issued to employees of, or consultants to, any of the
Company Entities pursuant to any of the Company Entities' Stock Option Plan
covering not more, in the aggregate, than 15% of the Membership Interests or
outstanding shares of common stock of the IPO Company (including up to 3% of
such Membership Interests (or outstanding shares of common stock) issued to
Xxxxxx); or
(v) issued for consideration other than cash and/or promissory
notes and which consideration is intended to be used by, or as an investment of,
any or the Company Entities and which the managing member of the Company
approves, having furnished at least ten days prior written notice to Buyer of
such approval, or which Board of Directors of the IPO Company approves after
similar prior notice.
(b) If any Company Entity proposes to offer Covered Securities at any
time beginning on the date of this Agreement and ending on the effective date of
the IPO of the Company or the IPO Company, whichever is earlier, such Company
Entity shall, before such offer, deliver to Buyer an offer (the "Company Offer")
to issue to it, upon the terms (including price) which the Company Entity
proposes to issue the Covered Securities, a portion of the Covered Securities
(the "Offered Securities") equal to the product of (i) the aggregate amount of
the Covered Securities proposed to be offered; and (ii) the Pro Rata Amount of
Buyer. The Company Offer shall state that the Company Entity proposes to issue
Covered Securities, specify their number and terms (including purchase price),
and the number of the Offered Securities and the proposed purchaser thereof. The
Company Offer shall remain open and irrevocable for a period of 20 business days
(the "Participation Period") from the date of its delivery; PROVIDED, that if
the Company Entity does not issue such Covered Securities, the Company Offer may
be rescinded by the Company, or if the total amount of such Covered Securities
shall be reduced, the Company Offer shall be extended only to the Pro Rata
Amount of such reduced amount of Covered Securities. "Pro Rata Amount" means the
percentage of all of the Membership Interests owned by Buyer or its members and
any Family Donee assuming on a PRO FORMA basis, the exercise of Xxxxxx'x options
to purchase up to a 3% (or in certain circumstances, up to 5%) Membership
Interest.
(c) The Buyer may accept a Company Offer by delivering to the Company
Entity a notice (the "Purchase Notice") within the Participation Period. The
Purchase Notice shall state the number (the "Purchase Number") of Offered
Securities Buyer desires to purchase.
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(d) The issuance of Offered Securities to Buyer, should Buyer deliver
a Purchase Notice, shall be made on a business day, as designated by the Company
Entity, not more than 30 days after the expiration of the Participation Period
and shall be contemporaneous with the issuance of the Covered Securities to
other purchasers upon the terms and conditions of the Offer.
(e) If the number of Offered Securities exceeds the Purchase Number,
the Company Entity may, not more than 90 days after the expiration of the
Participation Period issue such excess or any portion thereof on the terms and
conditions of the Offer to any person or entity.
9. (a) Subject to the remaining provisions of this Section 9, during the
period from the date of this Agreement until the sixth monthly anniversary of
the date of this Agreement, the Company may sell Covered Securities to a person
or entity other than Buyer (the "Proposed Purchaser"), only after receipt of a
BONA FIDE written offer (an "Outside Offer") from the Proposed Purchaser to
purchase Covered Securities being offered by the Company (the "ROFR Securities")
and complies with the other terms hereof. Following the receipt of the Outside
Offer, the Company shall deliver a written notice (the "ROFR Notice") to Buyer.
The ROFR Notice shall state that the Company proposes to sell Covered
Securities, specify their numbers and summarize the material terms (including
purchase price) of the Outside Offer and shall attach such Outside Offer. The
delivery of the ROFR Notice shall constitute the Company's offer to sell the
ROFR Securities to Buyer on terms identical to those of the Outside Offer.
(b) Within 20 business days following the receipt by Buyer of the ROFR
Notice, Buyer may elect, by notice to the Company, to purchase all, but not less
than all, of the ROFR Securities upon the terms and conditions of the Outside
Offer.
(c) If Buyer does not elect to purchase all of the ROFR Securities,
the Company may, within 90 days after the ROFR Notice is given, sell not less
than all of the ROFR Securities to the Proposed Purchaser on the terms
(including purchase price) of the Outside Offer. After the expiration of such
90-day period or if the Outside Offer shall be modified in any material respect,
the Company's right to sell the ROFR Securities to the Proposed Purchaser
pursuant to this Section 9(c) shall terminate, and the terms of Section 9(a)
shall again become effective, during the time period described in the first
sentence of Section 9(a).
(d) During the period from the date of this Agreement until the sixth
monthly anniversary of the date of this Agreement, Buyer shall be entitled to
exercise its rights with respect to any proposed issuance of Covered Securities
under either Section 8(c) or 9(b), and the Company may furnish one notice that
is both the Company Offer and the ROFR Notice. Upon such sixth monthly
anniversary of the date of this Agreement, Buyer's rights under this Section 9
shall terminate, except with respect to any Outside Offer made prior to such
expiration.
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10. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, sent by overnight courier or facsimile transmission or
delivered against receipt to the party to whom it is to be given at the address
of such party set forth in the preamble to this Agreement (or to such other
address as the party shall have furnished in writing in accordance with the
provisions of this Section 10). Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof; any
notice sent by overnight courier shall be deemed given on the next business day
after delivery to the courier; any notice sent by facsimile transmission shall
be deemed given upon receipt (electronically or otherwise); and any notice
delivered against receipt shall be deemed given upon receipt, except in each
case for a notice changing a party's address which shall be deemed given at the
time of receipt thereof.
11. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, the successors and assigns of the Company, including, without
limitation, any IPO Company, and the successors and assigns of Buyer that become
such successors and assigns in connection with a transfer of all or any portion
the 5% Membership Interest in compliance with the provisions of this Agreement
and the LLC Agreement.
12. (a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to principles
governing conflicts of laws.
(b) The Company irrevocably consents to the jurisdiction of the courts
of the State of New York and of any federal court located in such State, in each
case sitting in New York County, in connection with any action or proceeding
arising out of or relating to this Agreement, any document or instrument
directly pursuant to, in connection with, or simultaneously with, this Agreement
or a breach of this Agreement or any such document or instrument. In any such
action or proceeding, the Company waives personal service of any summons,
complaint or other process and agrees that service thereof may be made in
accordance with Section 10 hereof.
(c) Except with respect to Xxxxxx, Permitted Transferees and the IPO
Company, there shall be no third party beneficiary of this Agreement.
13. This Agreement, together with the Note, the Warrant, and other
Transaction Documents signed by the undersigned parties on this date represent
the entire agreement with respect to the subject matter hereof, supersedes any
prior oral or written agreements or undertakings between the parties with
respect to such subject matter and may not be modified or amended except in a
writing duly executed by each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date first written above.
FM/CCP INVESTMENT PARTNERS,
LLC
By: /s/ Xxxxxx Xxxxxx
------------------------
Name: Xxxxxx Xxxxxx
Title:
Consented and agreed to by:
INTERNET FASHION MALL, LLC
By: /s/ Xxxxxxxx Xxxxxxx
------------------------
Xxxxxxxx Xxxxxxx
Member
XXXXXXX X. XXXXXX & COMPANY,
LLP, as a Member
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------
Principal
/s/ Xxxxxxxx Xxxxxxx
-------------------------
Xxxxxxxx Xxxxxxx
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