EXECUTION VERSION
SUBSCRIPTION AGREEMENT
BETWEEN
DME INTERACTIVE HOLDINGS, INC.
AND
AMERICA ONLINE, INC.
DATED AS OF FEBRUARY 2, 2000
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT, dated as of February 2, 2000, among DME
INTERACTIVE HOLDINGS, INC., a Delaware corporation (the "COMPANY") and AMERICA
ONLINE, INC., a Delaware corporation (the "INVESTOR").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the parties hereto are, contemporaneously with entering into
this Agreement, entering into a Strategic Agreement (the "STRATEGIC AGREEMENT").
WHEREAS, on the terms and conditions set forth herein and as partial
consideration for Investor and its wholly-owned subsidiary, CompuServe
Interactive Services, Inc. ("CompuServe"), having executed and delivered the
Strategic Agreement to the Company and its wholly-owned subsidiary, Places of
Color, Inc., the Company wishes to issue and sell to the Investor, and the
Investor wishes to subscribe for and purchase from the Company, one million two
hundred fifty thousand (1,250,000) shares of Company common stock, par value
$0.001 per share ("Common Stock");
WHEREAS, the parties hereto believe it is in their mutual best interest
to enter into certain other agreements, as set forth herein; and
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings:
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, such specified
Person.
"AGREEMENT" means this Subscription Agreement, dated as of February 2,
2000.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"CAPITAL STOCK" means, with respect to any Person at any time, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of capital stock, partnership interests (whether
general or limited) or equivalent ownership interests in such Person.
"CLOSING" has the meaning specified in Section 2.02.
"CLOSING REPRESENTATIONS" means the representations and warranties of
the Company contained in Article III of this Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" has the meaning specified in the Preamble.
"COMPANY" has the meaning specified in the Preamble.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, as
trustee or executor, by contract or credit arrangement or otherwise.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"INDEMNIFIABLE LOSSES" has the meaning specified in Section 7.02(d)(i).
"INVESTOR" has the meaning specified in the Preamble.
"LOSSES" has the meaning specified in Section 7.02(d)(ii).
"MATERIAL ADVERSE EFFECT" has the meaning specified in Section 3.01.
"PERMITS" has the meaning specified in Section 3.05(b)(i).
"PERSON" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a Person under Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended.
"SEC REPORTS" has the meaning specified in Section 3.06(a).
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"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"STRATEGIC AGREEMENT" has the meaning specified in the Recitals.
"SUBSIDIARY" means any and all corporations, partnerships, joint
ventures, associations and other entities Controlled by the Company directly or
indirectly through one or more intermediaries.
"TERMINATION DATE" has the meaning specified in Section 8.01(a)(ii).
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. SALE OF COMMON STOCK; OPTION TO PURCHASE COMMON STOCK.
Upon the terms and subject to the conditions set forth in this Agreement, the
Company shall issue and deliver to the Investor, and the Investor shall accept
from the Company, 1,250,000 shares of Common Stock (the "Subscription Shares"),
in consideration for (i) Investor's execution and delivery of the Strategic
Agreement, and (ii) Investor's payment to the Company of a nominal aggregate
purchase price of one thousand two hundred fifty Dollars ($1,250.00).
SECTION 2.02. CLOSING. Upon the terms and subject to the conditions set
forth in this Agreement, the transactions provided for in Section 2.01 shall
take place at a closing (the "CLOSING") to be held at 10:00 a.m. Virginia time
on the later of February 2, 2000 or the Business Day following the satisfaction
or waiver of all conditions to the obligations of the parties set forth in
Article V, or at such other time or on such other date as the parties may
mutually agree upon.
SECTION 2.03. CLOSING DELIVERIES BY THE COMPANY. (a) At the Closing,
the Company shall deliver to the Investor:
(a) a certificate evidencing 1,250,000 shares of Common Stock in
definitive form and registered in the name of the Investor;
(b) a certificate from the Company, signed by a duly authorized
officer, to the effect that the Company's Closing Representations are true and
correct as of the Closing, with the same force and effect as if made on the date
of the Closing, and that all covenants and agreements of the Company contained
in this Agreement to be complied with on or prior to the Closing have been
complied with; and
(c) true and complete copies, certified by the Secretary of the
Company, of the Certificate of Incorporation and By-laws of the Company and of
the resolutions duly and validly adopted by its Board of Directors, evidencing
their authorization of the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
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SECTION 2.04. CLOSING DELIVERIES BY THE INVESTOR. At the Closing:
(a) the Investor shall pay $1,250 in immediately available funds to an
account designated in writing by the Company on or before the date of the
Closing; and
(b) the Investor shall deliver a certificate, signed by a duly
authorized officer, to the effect that the representations and warranties of
such party contained in Article IV of this Agreement are true and correct as of
the Closing, with the same force and effect as if made on the date of the
Closing, and that all covenants and agreements of such party contained in this
Agreement to be complied with on or prior to the Closing have been complied with
and confirming, with respect to the shares of Common Stock to be purchased at
the Closing, the understandings and statements contained in Section 6.01.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investor as follows:
SECTION 3.01. DUE ORGANIZATION AND AUTHORITY. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all necessary legal power and authority to
enter into this Agreement, to carry out its obligations hereunder, and to
consummate the transactions contemplated hereby. The Company is duly licensed or
qualified to do business and is in good standing in each jurisdiction in which
the properties owned or leased by it or the operation of its business makes such
licensing or qualification necessary, except to the extent that the failure to
be so licensed or qualified would not have a material adverse effect on the
financial condition, business or operations of the Company and its Subsidiaries
taken as a whole (a "MATERIAL ADVERSE EFFECT") or prevent or materially delay
the consummation of the transactions contemplated by this Agreement. The
execution and delivery of this Agreement by the Company, the performance by the
Company of its obligations hereunder, and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of the Company. This Agreement has been duly executed and
delivered by the Company, and (assuming due authorization, execution and
delivery by the other parties hereto and thereto) this Agreement constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
SECTION 3.02. CAPITAL STOCK OF COMPANY. The Common Stock to be issued
by the Company pursuant to this Agreement has been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement, will have
been validly issued and will be fully paid and nonassessable. No Person has any
preemptive or similar rights with respect to the Subscribed Shares, and neither
the parties hereto nor subsequent holders in due course of such Subscribed
Shares will be entitled to any such preemptive or similar rights. The authorized
capital stock of the Company consists of: (a) 30,000,000 shares of Common Stock,
of which 24,723,666 shares were issued and outstanding on January 15, 2000; and
(b) no shares of preferred stock.
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SECTION 3.03. NO CONFLICT. Assuming that all consents, approvals,
authorizations and other actions described in Section 3.04 have been obtained,
the execution, delivery and performance of this Agreement by the Company do not
and will not (a) violate, conflict with or result in the breach of any provision
of its Certificate of Incorporation or By-laws, (b) conflict with or violate any
law, governmental regulation or governmental order applicable to it or any of
its assets, properties or businesses or (c) conflict with, result in any breach
of, constitute a default (or event which with the giving of notice or lapse of
time, or both, would become a default) under, require any consent under, or give
to others any rights of termination, amendment, acceleration, suspension,
revocation or cancellation of, or result in the creation of any encumbrance on
any of the Company's assets or properties pursuant to, any note, bond, mortgage
or indenture, contract, agreement, lease, sublease, license, permit, franchise
or other instrument or arrangement to which the Company is a party or by which
any of its assets or properties is bound or affected; except to the extent that
any conflict under (b) or (c) above would not have a Material Adverse Effect or
prevent or materially delay the consummation of the transactions contemplated by
this Agreement.
SECTION 3.04. GOVERNMENTAL CONSENTS AND APPROVALS. The execution,
delivery and performance of this Agreement by the Company do not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to, any governmental authority.
SECTION 3.05. COMPLIANCE WITH LAWS; LITIGATION. (a) The Company is in
compliance with all requirements of applicable law, all applicable requirements
of the principal trading market where the Company's securities are traded and
all orders issued by any court or governmental authority against the Company,
except to the extent that any such failure to so comply would not have a
Material Adverse Effect or prevent or materially delay the consummation of the
transactions contemplated by this Agreement.
(b) (i) The Company has all material licenses, permits and approvals of
any governmental authority (collectively, "PERMITS") that are necessary for the
conduct of the business of the Company; (ii) such Permits are in full force and
effect; and (iii) to the Company's best knowledge no material violations are or
have been recorded in respect of any Permit.
(c) Except as set forth in the SEC Reports filed prior to the date of
this Agreement, there is no pending or, to the knowledge of the Company,
threatened action, suit or proceeding to which the Company or any of its
subsidiaries is a party, before or by any court or governmental agency or body,
that could reasonably be expected to result in a Material Adverse Effect or to
prevent or materially delay the consummation of the transactions contemplated by
this Agreement.
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SECTION 3.06. SEC FILINGS; FINANCIAL STATEMENTS; ABSENCE OF UNDISCLOSED
LIABILITIES. (a) The Company has filed all forms, reports and documents required
to be filed by it with the Commission ("SEC REPORTS") since its initial public
offering, including (but not limited to) its registration statement on Form
SB-2. Except as set forth in the SEC Reports filed prior to the date of this
Agreement, as of the respective dates they were filed (or if amended or
superseded by a filing prior to the date of this Agreement, on the date of such
amending or superseding filing), (i) the SEC Reports were prepared in all
material respects in accordance with the requirements of the Securities Act or
the Exchange Act, as the case may be, and (ii) none of the SEC Reports 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 made
therein, in the light of the circumstances under which they were made, not
misleading. No Subsidiary of the Company is required to file any form, report or
other document with the Commission.
(b) Each of the consolidated financial statements (including, in each
case, any notes and schedules thereto) contained in the SEC Reports complied as
to form with the applicable accounting requirements and rules and regulations of
the Commission and was prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis throughout the
periods indicated (except as may be indicated in the notes thereto or, in the
case of unaudited financial statements, as permitted by the rules and
regulations of the Commission), and each presented fairly, in all material
respects, the consolidated financial position of the Company and its
consolidated subsidiaries at the respective dates thereof and their results of
operations and cash flows for the respective periods indicated therein, all in
accordance with United States generally accepted accounting principles (subject,
in the case of unaudited statements, to normal and recurring year-end
adjustments which were not and are not expected, individually or in the
aggregate, to be material in amount).
(c) Except for liabilities and obligations reflected on the June 17,
1999 consolidated balance sheet of Digital Mafia Entertainment, LLC (including
the notes thereto) included in the Company's amended Form 8-K filed June 26,
1999, reflected on the August 31, 1999 consolidated balance sheet of the Company
(including the notes thereto) included in the Company's Form 10-QSB filed
October 15, 1999, liabilities and obligations disclosed in SEC Reports filed
prior to the date of this Agreement and other liabilities and obligations
incurred in the ordinary course of business since June 17, 1999 or that would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, neither the Company nor any of its subsidiaries has any material
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise).
SECTION 3.07. NO MATERIAL ADVERSE CHANGE. Except as otherwise disclosed
in the SEC Reports filed prior to the date hereof, since June 17, 1999, there
has not been a material adverse change in the financial condition, business or
operations of the Company and its subsidiaries taken as a whole.
SECTION 3.08. BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company or any of its Affiliates.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
THE INVESTOR
The Investor represents and warrants to the Company as follows:
SECTION 4.01. ORGANIZATION AND AUTHORITY. Such party is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation and has all necessary legal power and authority to
enter into this Agreement, to carry out its obligations hereunder, and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by such party, the performance by it of its obligations
hereunder, and the consummation by it of the transactions contemplated hereby
have been duly authorized by all requisite action on its part. This Agreement
has been duly executed and delivered by such party, and (assuming due
authorization, execution and delivery by the other parties hereto) this
Agreement constitutes a legal, valid and binding obligation of such party,
enforceable against it in accordance with its terms.
SECTION 4.02. NO CONFLICT. Assuming that all consents, approvals,
authorizations and other actions described in Section 4.03 have been obtained,
the execution, delivery and performance of this Agreement by such party do not
and will not (a) violate, conflict with or result in the breach of any provision
of its Charter or By-laws (or similar organizational documents), (b) conflict
with or violate any law, governmental regulation or governmental order
applicable to such party or any of its assets, properties or businesses or (c)
conflict with, result in any breach of, constitute a default (or event which
with the giving of notice or lapse of time, or both, would become a default)
under, require any consent under, or give to others any rights pursuant to, any
contract, agreement or arrangement by which such party is bound; except to the
extent that any conflict under (b) or (c) above would not prevent or materially
delay the consummation of the transactions contemplated by this Agreement.
SECTION 4.03. GOVERNMENTAL CONSENTS AND APPROVALS. The execution,
delivery and performance of this Agreement by the Investor do not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to, any governmental authority.
SECTION 4.04. BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Investor or any of its Affiliates.
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ARTICLE V
CONDITIONS TO THE CLOSING
SECTION 5.01. CONDITIONS TO THE CLOSING. The obligations of each party
to this Agreement to consummate the transactions contemplated by Section 2.01
shall be subject to the fulfillment, at or prior to the Closing, of each of the
following conditions:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. (i) In the case of the
Investor, the Company's Closing Representations shall have been true and correct
when made and shall be true and correct as of the Closing, with the same force
and effect as if made on the date of the Closing, and all covenants and
agreements of the Company contained in this Agreement to be complied with on or
prior to the Closing shall have been complied with in all material respects.
(ii) In the case of the Company, the representations and warranties of
the Investor contained in Article IV and Section 6.01 of this Agreement
shall have been true and correct when made and shall be true and correct as
of the Closing, with the same force and effect as if made on the date of
the Closing, and all covenants and agreements of the Investor contained in
this Agreement to be complied with on or prior to the Closing shall have
been complied with in all material respects.
(b) NO PROHIBITION. None of the transactions contemplated hereby shall
have been prohibited by any applicable law, court order or governmental
regulation.
ARTICLE VI
TRANSFER OF SHARES
SECTION 6.01. PRIVATE PLACEMENT. (a) The Investor understands that: (i)
the purchase of the Subscribed Shares involves a high degree of risk, an
investment in the Company is highly speculative and the Investor could sustain
the loss of its entire investment; (ii) the offering and sale of the Common
Stock hereunder are intended to be exempt from registration under the Securities
Act pursuant to Section 4(2) of the Securities Act; (iii) the Subscribed Shares
have not been registered under the Securities Act or any state or foreign
securities laws, and may not be offered, sold or transferred by the Investor
unless registered under the Securities Act and applicable state and foreign
securities laws, or an exemption from such registration is available; and (iv)
there can be no assurance that such Investor will be able to sell or dispose of
the Common Stock.
(b) The Investor hereby confirms to the Company that: (i) the
Subscribed Shares are being acquired for the Investor's own account, for
investment and without a view to the distribution or resale thereof or any
interest therein to others; (ii) the Investor is an "accredited investor" as
such term is defined in Regulation D, as amended, under the Securities Act;
(iii) the Investor has sufficient knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and risks of its
investment in Subscribed Shares, and is capable of bearing the economic risks of
such investment, including a complete loss of its investment in the Subscribed
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Shares; (iv) the Investor has been furnished by the Company with all information
regarding the Company which it had requested or desired to know; that all
documents which could be reasonably provided have been made available for its
inspection and review; that it has been afforded the opportunity to ask
questions of and receive answers from duly authorized officers or other
representatives of the Company concerning the terms and conditions of the
offering, the use of proceeds from this offering and any additional information
which it had requested; and (v) except as set forth in this Agreement, the SEC
Reports and the Company Disclosure Schedule, no representations or warranties
have been made to the Investor by the Company or any agent, employee or
affiliate of the Company and in entering into this transaction, the Investor is
not relying on any information, other than that contained in this Agreement, the
SEC Reports and the Company Disclosure Schedule and the results of independent
investigation by the Investor.
SECTION 6.02. LEGENDS. (a) The Company shall affix to each certificate
evidencing shares of Subscribed Shares a legend in substantially the following
form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
UNLESS EITHER (1) SUCH SHARES ARE REGISTERED UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS OR (2) AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE AND LEGAL COUNSEL OF THE HOLDER OF SUCH
SHARES (WHICH COUNSEL IS REASONABLY SATISFACTORY TO THE COMPANY)
PROVIDES AN OPINION TO SUCH EFFECT TO THE COMPANY."
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.01. HSR. Each of the parties hereto shall use reasonable
efforts to cause any waiting period (and any extension thereof) under the HSR
Act, applicable to the acquisition of the Subscribed Shares to expire or be
terminated prior to the time of such conversion or exercise and shall cooperate
in making any filings with the appropriate governmental entities in connection
therewith.
SECTION 7.02. SURVIVAL; INDEMNIFICATION. (a) The Closing
Representations shall survive for a period of eighteen (18) months from the date
hereof.
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(b) The Company shall indemnify and hold harmless the Investor from and
against any and all Indemnifiable Losses (as defined below); provided, however,
that no claim with respect to Indemnifiable Losses may be asserted unless
written notice of such claim describing in detail the facts and circumstances
with respect to the subject matter of such claim is received by the Company on
or prior to the date which is eighteen (18) months from the date hereof. The
Company is not making any representations and warranties other than the Closing
Representations in connection with the Closing.
(c) For purposes of this Section 7.02: (i) "INDEMNIFIABLE LOSSES" means
with respect to the shares of Subscribed Shares purchased by the Investor at the
Closing, Losses arising out of the failure of the Closing Representations to be
true and correct as of the date of the Closing, provided, however, that in no
event shall the amount of such Indemnifiable Losses exceed the purchase price of
such shares of Subscribed Shares; and (ii) "LOSSES" means any and all losses,
liabilities, damages, costs and expenses actually suffered or incurred by the
Investor (including without limitation reasonable attorneys' fees and expenses),
but shall not include any consequential damages or any Losses that could have
been avoided if the Investor had taken reasonable steps to mitigate its Losses.
SECTION 7.03. OTHER ACTION. Each of the parties hereto shall use
reasonable efforts to take, or cause to be taken, all appropriate action, and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws to consummate and make effective the transactions contemplated
hereunder, including, without limitation, using reasonable efforts to obtain all
licenses, permits, consents, approvals, authorizations, qualifications and
orders of the competent governmental entities.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. TERMINATION. (a) This Agreement may be terminated and the
transactions contemplated by this Agreement may be abandoned at any time prior
to the Closing, as follows:
(i) by mutual written consent of each of the Investor and the Company;
(ii) by either the Investor or the Company if the Closing shall not
have occurred on or before March 31, 2000 (the "TERMINATION DATE");
PROVIDED, HOWEVER, that the right to terminate this Agreement under this
Section 8.01(a)(ii) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before the
Termination Date; or
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(iii) by either the Investor or the Company, if any governmental entity
(A) shall have issued an order or taken any other action permanently
restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement, and such order or other action shall have
become final and nonappealable, or (B) shall have failed to issue an order
or to take any other action necessary to fulfill the conditions to the
Closing and such denial of a request to issue such order or take such other
action shall have become final and nonappealable.
(b) In the event of termination of this Agreement pursuant to Section
8.01, this Agreement shall forthwith become void and there shall be no liability
under this Agreement on the part of the Investor or the Company or any of their
respective officers or directors and all rights and obligations of each party
hereto shall cease, except (a) the provisions of Sections 8.02 and 8.04 shall
survive such termination and (b) nothing herein shall relieve any party from
liability for any willful breach of any representation, warranty, covenant or
other agreement in this Agreement occurring prior to termination.
SECTION 8.02. EXPENSES. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Closing
shall have occurred.
SECTION 8.03. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by telecopy (confirmed by courier service or by
mail) or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 8.03):
(a) if to the Company:
DME Interactive Holdings, Inc.
000 Xxxx Xxxxxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Darien Dash
with a copy to:
Xxxxx Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxxx Xxxxxxxx, Jr.
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(b) if to the Investor:
America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
SECTION 8.04. PUBLIC ANNOUNCEMENTS. Except as required by law,
governmental regulation or by the requirements of any securities exchange on
which the securities of a party hereto are listed, no party to this Agreement
shall make, or cause to be made, any press release or public announcement in
respect of this Agreement or the transactions contemplated hereby, or disclosure
of this Agreement or the Strategic Agreement or any of their terms to any third
party (including any potential investor) or otherwise communicate with any news
media without the prior written consent of the other party, and the parties
shall cooperate as to the timing and contents of any such press release or
public announcement.
SECTION 8.05. HEADINGS; INTERPRETATION. (a) The descriptive headings
contained in this Agreement are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
(b) Whenever used in this Agreement, any noun or pronoun shall be
deemed to include both the singular and plural and to cover all genders; and the
words "herein," "hereof" and "hereunder" and words of similar import shall refer
to this Agreement as a whole.
SECTION 8.06. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law,
governmental regulation or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the greatest possible
extent.
SECTION 8.07. ENTIRE AGREEMENT. This Agreement, together with Strategic
Agreement and the Investor Rights Agreement between the Company and the
Investor, constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof and thereof and supersedes all prior agreements and
undertakings, both written and oral, with respect to the subject matter hereof.
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SECTION 8.08. ASSIGNMENT. This Agreement shall not be assigned by
either party without the express written consent of the other party hereto
(which consent may be granted or withheld in the sole discretion of any party);
provided, however, that the Investor may, without the consent of the Company,
assign all or a portion of its rights hereunder to any Person to whom the
Investor would be permitted to transfer shares of Subscribed Shares without the
consent of the Company.
SECTION 8.09. AMENDMENT. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, each of the
parties.
SECTION 8.10. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
SECTION 8.11. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 8.12. NON-WAIVER; CUMULATIVE REMEDIES. No course of dealing or
any delay or failure to exercise any right hereunder on the part of the Investor
or the Company shall operate as a waiver of such right or otherwise prejudice
the rights, powers or remedies of the Investor or the Company. No single or
partial waiver by the Investor or the Company of any provision of this Agreement
or of any breach or default hereunder or of any right or remedy shall operate as
a waiver of any other provision, breach, default right or remedy or of the same
provision, breach, default right or remedy on a future occasion. The rights and
remedies provided in this Agreement are cumulative and are in addition to all
rights and remedies which the Investor or the Company may have in law or in
equity or by statute or otherwise.
SECTION 8.13. WAIVER OF JURY TRIAL. Each of the parties hereto
irrevocably and unconditionally waives trial by jury in any legal action or
proceeding relating to this Agreement or the transactions contemplated hereby
and for any counterclaim therein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories hereunto duly
authorized as of the date first above written.
DME INTERACTIVE HOLDINGS, INC.
By /s/ DARIEN DASH
------------------------
Name: Darien Dash
Title: President
AMERICA ONLINE, INC.
By /s/ XXXXX XXXXXXX
-------------------------
Name: Xxxxx Xxxxxxx
Title: President-Business Affairs
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