Exhibit 10.35
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of April 12, 2000, by and between
Lycos, Inc., a Delaware corporation (the "Buyer") and Xxxxxxx.xxx, Inc., a
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Delaware corporation (the "Company").
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WHEREAS, pursuant to the terms and conditions set forth herein, the Buyer
desires to purchase, and the Company desires to sell, shares of the Company's
Common Stock, $.001 par value per share (the "Common Stock") for an aggregate
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purchase price of $21,846,109.95.
NOW, THEREFORE, in consideration of the respective undertakings, covenants
and agreements of the parties set forth herein, the parties hereby agree as
follows:
1. Purchase and Sale. At the Closing (as defined below) the Company shall
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sell to the Buyer, and the Buyer shall purchase from the Company, 3,035,025
shares of Common Stock (the "Shares") at a price of $ 7.198 per share; such
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price is equal to the average closing price of Buyer Common Stock for the 30
consecutive trading days ending on March 24, 2000. The Shares represent 10% of
the fully-diluted capital stock of the Company as of March 26, 2000, not taking
into effect the issuance of the Shares.
2. Closing. The closing of the purchase and sale of the Common Stock (the
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"Closing") shall take place at 10 a.m. on the date hereof at the offices of
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Lycos, Inc., 000-0 Xxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000 or at such other time or
place as the parties hereto may mutually agree. At the Closing, the Company
shall deliver to the Buyer a stock certificate evidencing the Common Stock to be
purchased by the Buyer, registered in the Buyer's name, upon payment of the
purchase price thereof by wire transfer of immediately available funds to an
account designated by the Company.
3. Conditions to Closing. The obligations of Buyer to purchase and pay
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for the Shares at Closing, and of the Company to register and deliver the stock
certificates, is subject to receipt at the Closing of the following documents:
(a) Opinion. Buyer shall have received, in form and substance
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reasonably satisfactory to Buyer, an opinion of counsel as is set forth on
Exhibit A hereto.
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(b) Board Approval. The Company's Board of Directors has consented to
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the transaction contemplated herein; such resolution is set forth as Exhibit B
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hereto.
(c) Certain Stockholder Approval. The terms of Section 7A herein
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shall have been consented to by the holders of at least a majority in interest
of the Registrable Securities (as such term is defined in the Amended and
Restated Rights Agreement dated as of October 16, 1998 by and among the
Investors, the Founders, the Shareholders (as such terms are defined therein)
and the Company); such consent is set forth as Exhibit C hereto.
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(d) E-commerce Agreement. The E-commerce Agreement between the
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Company and the Buyer, dated as of March 26, 2000 (the "E-Commerce Agreement")
shall be in full force and effect.
4. Representations and Warranties of the Company. The Company represents
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and warrants to the Buyer as follows as of the date hereof:
4.1 Ownership of Shares. The Shares are duly authorized, fully paid
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and nonassessable, and are free and clear of all liens, encumbrances,
restrictions on transfer or issuance, preemptive rights, charges and claims of
every kind.
4.2 Organization, Good Standing and Authority of the Company. The
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Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has the requisite power and
authority to own all of its properties and assets and to carry on its businesses
as they are now being conducted. The Company is duly qualified to do business
and is in good standing in each jurisdiction in which it owns or leases property
or engages in any activity which would require it to qualify to do business as a
foreign corporation and in which the failure to qualify could have a material
adverse effect upon the business or operations of the Company.
4.3 Authorization. The Company has full corporate power and
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authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Board of
Directors of the Company and no other corporate proceedings or actions on the
part of the Company (including any consents or waivers required for the issuance
of the Shares) are necessary to authorize this Agreement and the transactions
contemplated hereby. This Agreement constitutes the valid and binding
obligation of the Company, enforceable in accordance with its terms, except as
enforcement hereof may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to or affecting the rights of creditors generally and
subject to the fact that equitable remedies are discretionary and may not be
granted by a court of competent jurisdiction. The copies of the Company's
charter documents and bylaws which have been filed with the SEC from time to
time reflect all amendments made thereto at anytime prior to the date of this
Agreement and are correct and complete.
4.4 No Default. The execution, delivery and performance of this
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Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not constitute a default under any of the
terms, conditions or provisions of the Certificate of Incorporation or By-Laws
of the Company, or any material contract, agreement or arrangement to which the
Company is a party or by which it is bound.
4.5 Capital Stock of Company. The authorized, issued and outstanding
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capital stock of the Company on March 26, 2000 is as set forth on Attachment 1
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hereto; the Shares represent, as of the date thereof, 10% of the fully-diluted
capital stock of the Company, not taking into effect the issuance of the Shares.
Except as set forth on Attachment 1, there are no outstanding options,
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convertible securities, warrants, agreements, restrictions, preemptive rights or
rights of first refusal, contracts, or commitments of any character which
entitle any person to acquire or otherwise relate to the issuance of any shares
of capital stock of the Company or
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which restrict or otherwise relate to or provide for the transfer of any
outstanding shares of capital stock of the Company.
4.6 Compliance with Laws. The Company holds all material licenses,
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approvals, certificates, permits, authorizations, copyrights, trademarks,
patents, service marks, trade names, or applications or registrations thereto,
necessary for the lawful conduct of its business and is in material compliance
with all applicable federal, state and local laws, rules, regulations and
ordinances.
4.7 Litigation. There is no action, suit, proceeding at law or in
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equity, arbitration or administrative or other proceeding by or before (or to
the best knowledge, information and belief of the Company any investigation by)
any governmental or other instrumentality or agency, pending, or, to the best
knowledge, information and belief of the Company, threatened against or
affecting the Company, or any of its properties or rights which could materially
and adversely affect the right or ability of the Company to carry on its
business as now conducted, or which could materially and adversely affect the
condition, whether financial or otherwise, or properties of the Company; and the
Company does not know of any valid basis for any such action, proceeding or
investigation. The Company is not subject to any judgment, order or decree
entered in any lawsuit or proceeding which may have a material adverse effect on
any of its operations, or on its ability to acquire any property or conduct
business in any area, and the Company has not received any opinion or memorandum
or legal advice from legal counsel to the effect that it is exposed, from a
legal standpoint, to any liability or disadvantage which may be material to its
business.
4.8 Tax Matters. The Company has filed all tax returns which it is
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required to file under applicable laws and regulations; all such tax returns are
complete and correct in all material respects and have been prepared in
compliance with all applicable laws and regulations in all material respects;
the Company has paid all taxes due and owing by it (whether or not such taxes
are required to be shown on a tax return) and has withheld and paid over to the
appropriate taxing authority all taxes which it is required to withhold from
amounts paid or owing to any employee, stockholder, creditor or other third
party.
4.9 Contracts and Commitments. All of the contracts, agreements and
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instruments to which the Company is a party to or bound are valid, binding and
enforceable in accordance with their respective terms. The Company has performed
all obligations required to be performed by it and is not in default under or in
breach of nor in receipt of any claim of default or breach under any contract,
agreement or instrument to which the Company is subject; no event has occurred
which with the passage of time or the giving of notice or both would result in a
default, breach, or event of noncompliance by the Company under any contract,
agreement or instrument to which the Company is subject; the Company does not
have any present expectation or intention of not fully performing all such
obligations; the Company has no knowledge of any breach or anticipated breach by
the other parties to any contract, agreement, instrument or commitment to which
it is a party.
4.10 Brokerage. There are no claims for brokerage commissions,
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finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement binding
upon the Company. The Company shall pay,
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and hold the Buyer harmless against, any liability, loss or expense (including,
without limitation, reasonable attorneys' fees and out of pocket expenses)
arising in connection with any such claim.
4.11 Governmental Consent. No permit, consent, approval or
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authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by the
Company of this Agreement.
4.12 Compliance with Laws. The Company has not violated in any
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material manner any law or any governmental regulation or requirement, and the
Company has not received notice of any such violation. The Company is not
subject to, and has no reason to believe it may become subject to, any liability
(contingent or otherwise) or corrective or remedial obligation arising under any
federal, state, local or foreign law, rule or regulation (including the common
law) relating to or regulating health, safety, pollution or the protection of
the environment.
4.13 Disclosure. There is no fact (including any disclosed herein)
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which the Company has not disclosed to the Buyer in writing and of which any of
its officers, directors or executive employees is aware and which has had or
would reasonably be expected to have a material adverse effect upon the existing
or expected financial condition, operating results, assets, customer or supplier
relations, employee relations or business prospects of the Company.
5. Representations and Warranties of the Buyer. The Buyer represents and
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warrants to the Company as follows:
5.1 Organization, Good Standing and Authority of the Buyer. The
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Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts, and has the requisite power
and authority to own all of its properties and assets and to carry on its
businesses as they are now being conducted.
5.2 Authorization. The Buyer has full corporate power and authority
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to enter into this Agreement and to carry out its obligations hereunder. This
Agreement constitutes the valid and binding obligation of the Buyer, enforceable
in accordance with its terms, except as enforcement hereof may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to or
affecting the rights of creditors generally and subject to the fact that
equitable remedies are discretionary and may not be granted by a court of
competent jurisdiction.
5.3 No Default. The execution, delivery and performance of this
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Agreement by the Buyer and the consummation by the Buyer of the transactions
contemplated hereby do not and will not constitute a default under any of the
terms, conditions or provisions of the Certificate of Incorporation or By-Laws
of the Buyer, or any material contract, agreement or arrangement to which the
Buyer is a party or by which it is bound.
5.4 Investment. The Buyer is acquiring the Shares for its own
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account, for investment purposes only, and not with a view to the sale,
assignment, transfer or other distribution thereof. The Buyer recognizes that
the Shares have not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), and the Buyer agrees that it will not
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sell, assign, transfer, or otherwise distribute the Shares in violation of the
Securities Act. The Buyer is "accredited" as such term is defined under the
Securities Act.
5.5 Investigation. The Buyer is knowledgeable and experienced in the
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making of investments, is aware that the Company is a newly-formed company and
is able to bear the economic risk of loss of its investment in the Company. The
foregoing representation shall not be construed in any way so as to limit,
define or in any way affect the Company's liability arising from the warranties
and representations of the Company in this or any other agreement with the Buyer
or any affiliate of the Buyer.
5.6 Reliance. The Buyer has been advised that the Shares have not
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been and are not being registered under the Securities Act or under the "blue
sky" laws of any jurisdiction and that the Company in issuing the Shares is
relying upon, among other things, the representations and warranties of the
Buyer contained in this Section 5 in concluding that such issuance is a "private
offering" and does not require compliance with the registration provisions of
the Securities Act.
5.7 Brokerage. There are no claims for brokerage commissions,
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finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement binding
upon the Buyer. The Buyer shall pay, and hold the Company harmless against, any
liability, loss or expense (including, without limitation, reasonable attorneys'
fees and out of pocket expenses) arising in connection with any such claim.
6. Legends. The Buyer understands and agrees that each certificate
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representing the Shares delivered to the Buyer hereunder shall bear legends
substantially as follows:
"The shares represented hereby have not been registered under the Securities Act
of 1933, as amended, and may not be sold or transferred unless the registration
provisions of said Act have been complied with or unless in the opinion of
counsel satisfactory to the Company both as to opinion and counsel compliance
with such provisions is not required."
7. Affirmative Covenants of the Company.
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A(a) The Company covenants that, on or before the date which is nine
months from the date hereof Company shall file with the Securities and Exchange
Commission ("SEC") a Registration Statement on Form S-3 (a "Form S-3") (or any
successor form to Form S-3) for a public resale offering of the Shares and shall
use reasonable best efforts to cause such registration statement to become
effective on the date which is no more than one year from the date hereof (the
"Effective Date"), and to remain effective for the period ending on the first to
occur of (x) the date the resale of all shares registered thereunder is complete
or (y) the three year anniversary of the Effective Date if the Shares then held
by Buyer represent more than five percent of the outstanding Common Stock of the
Company or (z) the two year anniversary of the Effective Date if the Shares then
held by Buyer represent more five percent or less of the outstanding Common
Stock of the Company. If for any reason Company is not eligible to file such
registration statement on Form S-3 (or any successor form to Form S-3), Company
shall effect such registration using such form as Company is then eligible to
use.
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(b) In the case of any registration pursuant to this Section 7A, Company
shall keep Lycos advised of the initiation and completion of such registration.
At its expense, Company will promptly:
(i) Prepare and file with the SEC the registration statement
described in Section 7A(a) above and thereafter use commercially reasonable
efforts to cause such registration statement to become effective;
(ii) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectuses used in connection with
such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(iii) Furnish to Lycos such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as Lycos may reasonably
request in order to facilitate the disposition of the securities covered by
such registration statement;
(iv) Use commercially reasonable efforts to register and qualify the
securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by Lycos, provided that Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such states or
jurisdictions;
(v) Notify Lycos at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing;
(vi) Cause all such Shares to be listed on each securities exchange
or market system on which similar securities issued by the Company are then
listed; and
(vii) Provide a transfer agent and registrar for all such Shares not
later than the effective dates of such registration statements.
(c) Lycos shall provide Company with all necessary and reasonable
assistance in the preparation and filing of the registration statement required
to be prepared and filed by Company and all other obligations of Company under
this Section 7A. Company's obligations under this Section 7A is conditioned in
all respects on the provision of all necessary and reasonable assistance to
Company by Lycos.
(d) Company shall pay the expenses incurred by it in complying with its
obligations under this Section 7A, including all registration and filing fees,
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exchange listing fees, fees and expenses of counsel for Company, and fees and
expenses of accountants for Company (but excluding all legal expenses,
commissions and discounts of Lycos).
(e) Company shall have the right, upon the advice of the Board of
Directors of Company (the "Board"), upon giving written notice to Lycos of the
exercise of such right, to require Lycos not to sell any shares pursuant to the
registration statement filed pursuant to Section 7A(a) for a reasonable period
(as determined in good faith by the Board) from the date on which such notice is
given (a "black-out period"), if (i)(A) Company is engaged in or proposes to
engage within ten days in discussions or negotiations with respect to, or has
proposed or taken a substantial step to commence, or there otherwise is pending,
any merger, acquisition, other form of business combination, divestiture, tender
offer, financing or other transaction, or there is an event or state of facts
relating to Company, in each case which is material to Company (as reasonably
determined by the Board) (any such negotiation, step, event or state of facts
being herein called "Material Activity"), (B) in the reasonable judgment of the
Board, after consultation with and acting upon the advice of outside counsel,
disclosure of such Material Activity would be necessary or advisable under
applicable securities laws and (C) such disclosure would, in the reasonable
judgment of the Board, be adverse to the interests of Company, or (ii) the
Board, in its reasonable judgment, deems it necessary to file a post-effective
amendment to such registration statement or to prepare a supplement to, or
otherwise amend, the form of prospectus contained therein. During any such
black-out period, Lycos agrees not to sell any Shares under such registration
statement for such period of time as the Board, acting on the advice of outside
counsel, may in good xxxxx xxxx advisable; provided, however, that no single
black-out period will be longer than forty-five (45) calendar days and, in the
aggregate, all black-out periods in any twelve (12) month period shall not
include more than one hundred twenty (120) calendar days. The period of
effectiveness of any registration statement in effect at the time of a black-out
period and the termination period under Section 7A(a) shall be extended for a
period equal to the black-out period.
(f) The Company will indemnify and hold harmless Lycos, its officers,
directors, partners, members, shareholders, employees, affiliates and agents
(collectively, "Agents") each person who participates as an underwriter and
their respective Agent and each other person, if any, who controls such seller
or underwriter within the meaning of the Securities Act and their respective
Agents, against any and all losses, claims, damages or liabilities, joint or
several, actions or proceedings (whether commenced or threatened) in respect
thereof, and expenses (as incurred or suffered and including, but not limited
to, any and all expenses incurred in investigating, preparing or defending any
litigation or proceeding, whether commenced or threatened, and the reasonable
fees, disbursements and other charges of legal counsel) in respect thereof
(collectively, "Claims"), insofar as such Claims arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement or any prospectus or any preliminary prospectus
forming a part of such registration statement or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided, however, that
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the Company will not be liable in any such case if and to the extent that any
such Claim arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by Lycos, any such underwriter or any such controlling person in
writing specifically for use in such registration statement or prospectus,
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and, provided, further, that the Company shall not be liable to any person to
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the extent that any such Claim arises out of a seller's or underwriter's failure
to send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Shares to such person if such statement or omission
was corrected in such final prospectus. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of any
person who may be entitled to indemnification pursuant to this Section and shall
survive the transfer of Shares by Lycos or underwriter.
(g) Lycos will indemnify and hold harmless the Company, its Agents, each
person who participates as an underwriter and their respective Agents and each
other person, if any, who controls the Company or any such underwriter within
the meaning of the Securities Act and their respective Agents, against any and
all Claims, insofar as such Claims arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement or any prospectus or any preliminary prospectus forming a
part of such registration statement or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by Lycos expressly for use therein; provided, however,
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that the liability of Lycos hereunder shall be limited to the net proceeds
received by Lycos upon the sale of Shares pursuant to the registration statement
giving rise to such Claims. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such indemnified party
and shall survive the transfer of Shares by Lycos or underwriter.
(h) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 7A and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 7A if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof (which notice shall be given within 20 days from receipt of the
notice provided to the indemnifying party by the indemnified party), the
indemnifying party shall not be liable to such indemnified party under this
Section 7A for any legal expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected, provided, however, that,
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if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indem-
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nified party shall have the right to select a separate counsel and to assume
such legal defenses and otherwise to participate in the defense of such action,
with the expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as incurred. No
indemnifying party shall be liable for any settlement or any such claim or
action effected without its written consent, which consent shall not be
unreasonably withheld.
(i) In any case in which indemnification provided for in sections (f) or
(g) is unavailable to an indemnified party hereunder in respect of any Claim,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such Claim (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying person on the one hand and the
indemnified person, on the other from the distribution of Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying
person on the one hand and of the indemnified person on the other in connection
with the statements or omissions (or alleged statements or omissions) which
resulted in such expense, loss, damage or liability, as well as any other
relevant equitable considerations; provided that the foregoing contribution
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agreement shall not inure to the benefit of any indemnified party if
indemnification would be unavailable to such indemnified party by reason of the
provisions contained in Section (f), and in no event shall the obligation of any
indemnifying party to contribute under this Section (i) exceed the amount that
such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under Sections (f) or (g)
had been available under the circumstances.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section (i) were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by a party as a result of any Claim referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth in Section (h), any legal or other fees, costs or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. No person or entity guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
(j) Notwithstanding this Section 7A, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with any underwritten offering contemplated by this
Agreement are in conflict with the provisions of this Section 7A, the provisions
of such underwriting agreement shall be controlling.
(k) The indemnification and contribution required by this Section 7A
shall be made by periodic payments of the amount thereof during the course of
any investigation or defense, as and when bills are received or any expense,
loss, damage or liability is incurred.
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B The Company covenants to make and keep public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act; to use its commercially reasonable best efforts to file with the
SEC in a timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act; and to furnish to Lycos (and
permitted assignees) forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of such Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
by the Company as Lycos may reasonably request in availing itself of any rule or
regulation of the SEC allowing Lycos to sell any Common Stock without
registration.
8. Affirmative Covenants of Buyer. Buyer covenants that it will, in
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selling Shares pursuant to the registration statement described in 7A(a),
(i)comply with all trading windows as they are then applicable to Company
employees (provided such restrictions are provided to Buyer in writing at least
twenty days prior to any such restricted period), (ii) not sell, in any quarter,
more than _____ [15%] Shares, (iii) not sell, on any day, more than ______[2%]
Shares, and (iv) not sell any Shares until the date which is one year from the
date hereof; provided, however, the foregoing restrictions (ii) and (iii) shall
no longer be applicable if the Company (x) becomes 60 days in arrears on amounts
owing to Buyer under Section 7 of the E-Commerce Agreement, (y) if the E-
Commerce Agreement is otherwise no longer in force and effect, or (z) at any
time when the Form S-3 is not effective pursuant to 7A(a).
9. Remedies. Any person having rights under any provision of this
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Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement, and
to exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
10. Successors and Assigns. All covenants and agreements in this
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Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not, except that neither party hereto shall have the
right to assign any of its rights hereunder or any interest herein without
obtaining the written consent of the other to such assignment; provided,
however, that a party shall be able to assign its rights hereunder without
necessity of consent of the other party in connection with any (i)
reorganization, consolidation or merger (or similar transaction or series of
transactions) of the party with or into any other corporation or corporations in
which the holders of such assigning party's outstanding stock immediately before
such transaction or series of related transactions do not, immediately after
such transaction or series of related transactions, retain stock representing a
majority of the voting power of the surviving corporation (or its parent
corporation if the surviving corporation is wholly owned by the parent
corporation) of such transaction or series of related transactions; or (ii) a
sale of all or substantially all of the assets of such assigning party.
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11. Survival of Representations and Warranties. All representations and
------------------------------------------
warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby for a period of nine
months, regardless of any investigation made by the party or on its behalf.
12. Severability. Whenever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but the Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
13. Entire Agreement. Except as otherwise expressly set forth herein,
----------------
this document embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
14. Notices. All notices, requests, consents and other communications
-------
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or by overnight courier,
addressed as follows:
if to the Company, to
Xxxxxxx.xxx, Inc.
Attention: General Counsel
0000 Xxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Phone: 000-000-0000
if to Lycos, to
LYCOS, INC.
Attention: General Counsel
000-0 Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
15. Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
16. Amendment and Waiver. Except as otherwise provided herein, no
--------------------
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Buyer unless such modification, amendment
or waiver is approved in writing by the
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Company and the Buyer. The failure of any party to enforce any of the provisions
of this Agreement shall in no way be construed as a waiver of such provisions
and shall not affect the right of such party thereafter to enforce each and
every provision of this Agreement in accordance with its terms.
17. Governing Law. This Agreement and the respective rights and
-------------
obligations of the parties hereto shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to principles of conflicts of laws.
18. Descriptive Headings. The descriptive headings in this Agreement are
--------------------
inserted for convenience only and do not constitute a part of this Agreement.
19. Further Assurances. Each party hereto shall do and perform or cause
------------------
to be done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Company and the Buyer have executed this Stock
Purchase Agreement as of the date first set forth above.
XXXXXXX.XXX, INC.
By: _________________________________
Name:
Title:
LYCOS, INC.
By: ________________________________
Name:
Title:
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ATTACHMENT 1
CAPITALIZATION
Fully-diluted capital stock (common stock and outstanding options) to be used
in calculation of Shares to be purchased by Buyer: 30,350,250
